Applicant v First Respondent

Supreme Court of Victoria|2012-10-10|Before: LANSDOWNE AsJ

The applicant not having been served prior to the hearing with the respondent's letter to the Tribunal dated 2 April 2012 and attached materials, the hearing proceeded as a mediation with the consent of the parties.
A spelling of the respondent's name is amended to Ermanno Giurina and the principal registrar is directed to amend the Register accordingly.
Leave is granted to Charles New, solicitor, to appear on behalf of the applicant.
The following address for the applicant is to be added to the Register, c/o Charles New, 1 James Street, Brighton 3186.
Leave to the applicant to amend the claim, including by joining further applicants to the application. Any amended claim is to be filed with the Tribunal and served on the respondent by 18 April 2012. Provided the applicant notifies the Tribunal in writing by 18 April 2012 of the names and addresses of the proposed joined applicants, direct the Principal Registrar to amend the Register accordingly.
Leave to the respondent to amend or add to the material filed in response to the application. Any such amendment is to be filed with the Tribunal and served on the applicant(s) by 25 April 2012.
Direct the parties to file with the Tribunal and serve on the other party copies of all documents they propose to rely upon at the hearing by 25 April 2012.
Direct the respondent by 25 April 2012 to obtain from the ANZ Bank and provide to the solicitor for the applicant copies of statements of account for the bank account held with the ANZ Bank in the name of Body Corporate Strata Plan No. 1579 or similar, for the period 1 January 2010 to date.
The hearing is adjourned to be further heard by any member except Member Kefford or Member Wentworth at 5th floor, 55 King Street, Melbourne on 1 May 2012 at 9.30am. Direct the Principal Registrar to allow approximately two hours for the hearing and to provide the file to the presiding member the day before the hearing.
The hearing will be a hearing of the substantive application and will not be a hearing under of the . The respondent may raise any matters referred to in the material attached to his letter dated 2 April 2012 at the hearing by way of defence.

16 Following the hearing/mediation on 4 April 2012, Mr Giurina sent a letter dated 11 April 2012 to the Registrar of VCAT in which he stated:

The Owners Corporation No. 1579 seeks leave to withdraw the above application without any order as to costs.

The Owners Corporation has notified the Respondent in writing of their withdrawal and he has consented that no order be made as to costs. His letter of consent is attached.

17 This letter was not signed by an individual but bears what appears to be the common seal of the body corporate followed by the words "Witnessed by authorised agent" and initials. In his affidavit sworn 13 July 2012, Mr Giurina makes it plain that he drafted and sent that letter. Attached to the letter was a letter also dated 11 April 2012 bearing Mr Giurina's address and signed by him saying that he consented to the withdrawal of the application.

18 The Tribunal replied to that letter by letter dated 18 April 2012 noting that "as the Applicant's solicitors have advised the Tribunal, the withdrawal is not from the Applicant, therefore the above matter will continue."

19 The individual lot owner applicants sought to be joined to the application by document dated 15 April 2012[2]. Deputy President Lulham treated the applicants as the Owners Corporation, and three lot owners Ms Ricotta, Ms Picone and Ms New.[3] The Tribunal, Mr Giurina and the persons speaking for the Owners Corporation prior to the joinder of the individual applicants[4] all appear to have treated the initial applicant as the Owners Corporation. Deputy President Lulham expressly did not decide whether Ms Ricotta, Ms Picone and Ms New (or, presumably, any of them) sought to sue on behalf of the Owners Corporation under s 163(1A) of the OC Act.[5]

20 The hearing proceeded before Deputy President Lulham on 1 May 2012. His orders dated 1 May 2012 but sent by letter dated 30 May 2012 were as follows:

The Tribunal declares that the management agreement between the Respondent and the First Applicant dated 12 December 2004 was terminated on 24 July 2011.
The Tribunal declares that in acting as manager, the Respondent -

(a) breached his duties to the First Applicant as trustee of the sum of $8,000 by mixing that trust money with his own funds;

(b) breached his duties under section 122(2) of the Owners Corporations Act 2006 by failing to account separately for the money held by him for the First Applicant;

(c) breached his duties under section 122(1)(c) of the Owners Corporations Act 2006 by failing to pay his contribution of $2,000 to the First Applicant despite requiring the other Lot owners to do so;

(d) breached his duties under section 122(1)(b) of the Owners Corporations Act 2006 by failing to disclose to the other Lot owners the Court proceedings issued against the First Applicant, and by settling those proceedings without obtaining approval from the Applicants.

The Tribunal declares that the Respondent breached paragraph 7 of the order made 25 April 2012.
The Tribunal declares that the Respondent attempted to deceive the Tribunal within the meaning of section 78(1)(e) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), by preparing and causing to be filed correspondence in April 2012 which purported to be the withdrawal of the proceeding by the Applicant.
The Respondent shall return to the secretary of the First Applicant, Maria Picone all records relating to the First Applicant and all funds of the First Applicant held or controlled by the Respondent.
The Respondent shall give to the secretary of the First Applicant, Marie Picone, all documents which are necessary to remove the Respondent as signatory to the ANZ Bank account BSB-013 2700, Account No. 582169534.
Liberty to apply.
The Applicants' costs are reserved.

21 The reference in Order 3 to an order made 25 April 2012 appears to be an error. It is apparent from the substance of the Reasons that Deputy President Lulham was there referring to Order 8 made 4 April 2012 by which Mr Giurina was directed to provide certain documents to the solicitor for the applicant by 25 April 2012.[6]

22 The Reasons note that Mr Giurina opposed the application before the Tribunal both on grounds as to the merits, in that he argued he was best placed to manage the Owners Corporation, and on the basis of what Deputy President Lulham describes as "a series of technical legal arguments that relate to the named Applicants' standing to sue and the Tribunal's jurisdiction to hear the case".[7] The Reasons set out a series of findings under the general heading "Mr Giurina's failings as manager" under the following subheadings "Failing to account for trust money", "Litigation involving the Owners Corporation", "Non-compliance with an Order to produce document" and "Deceiving the Tribunal". Deputy President Lulham summarised evidence given by Mr Giurina and made the findings as to breach of the OC Act, noncompliance with an order and deceiving the Tribunal that are reflected in the orders. Deputy President Lulham concluded in paragraph 27 of this portion of the Reasons that:

If this was a case about who should be manager, to be decided purely on the quality of the management services on offer, I would have no hesitation in finding against Mr Giurina. He breached his duties as a trustee. He breached his duties under s 122(2) of the OC Act. He kept secret the existence of litigation against both himself and the owners corporation, and then kept secret the fact of his having consented to judgment being entered against the owners corporation. He breached paragraph 7 of the Order made 4 April 2012 and gave nonsensical evidence in relation to bank records. He pretended, as 'Applicant', to withdraw the proceeding and then 'consented' to that bogus withdrawal. That Mr Giurina is a lawyer makes his misconduct all the more serious, because it cannot have been undertaken as a result of ignorance. Mr Giurina has blatantly disregarded his legal obligations.

23 The Reasons then continue under the heading "Mr Giurina's technical defences". I will discuss this portion of the reasons in more detail in relation to the proposed questions of law on which the applicant relies.

Test for leave to appeal and leave to appeal out of time

24 The relevant test for leave to appeal was established by The Department of Premier and Cabinet v Hulls ("Hulls")[8] which has been followed in numerous subsequent decisions. Justice Phillips, with whom Justices Tadgell and Batt agreed, summarised the requirements as follows:

When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on the question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[9]

25 Prior to his summary of this test quoted above, Phillips JA discussed the question of substantial injustice in these terms. He stated that in the case of an interlocutory order of the Tribunal, in accordance with Niemann v Electronic Industries Ltd[10] the applicant must show not only sufficient doubt about the correctness of the order, but also that there would be substantial injustice in leaving that order unreversed.[11] He continued in the next paragraph that such injustice would be more readily discerned in the case of a final order, but said that was not necessarily always the case and that

even in the case of a final order, the court from which leave is sought might sometimes require persuasion that there would be prejudice if the order below were allowed to stand, though tainted by error. What was said in Niemann might then still be useful guideline under s.148, whether the order below be final or interlocutory-provided it is recognised that that the injustice attending an order's continuing to stand is probably more readily discernible if it is final rather than interlocutory.

26 He also, immediately prior to the well known summary of the test for leave to appeal first quoted above, said that:

There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant.[12]

27 An error of fact does not amount to an error of law unless the Tribunal made a finding that was, in the words of Phillips JA in S v Crimes Compensation Tribunal[13] ("S"), "simply not open to it". Ordinarily, that will require that there was no evidence on the basis of which the Tribunal could reach that finding, not that there was some evidence tending to a different conclusion.

28 The Court has power to extend the time within which an application for leave to appeal may be brought, and to do so retrospectively. The usual considerations relevant to an extension of time are the length and explanation for the delay; the prejudice to the applicant if leave is not given to proceed out of time; the prejudice to the respondents if it is; and the merit of the proposed appeal.

29 The proposed notice of appeal exhibited to Mr Giurina's affidavit of 13 July 2012 contains 17 asserts questions of law ("the Questions") extending over five pages, and 17 grounds, also extending over five pages. The Questions challenge the jurisdiction of the Tribunal and the standing of the applicants (Questions 1,3,4), which challenge in part turns on a challenge to the applicability of the OC Act to the applicant's conduct as manager (Questions 7-10); claim errors in relation to various factual findings if that Act applies (Questions 11-13) and to other findings (Questions 14, 15, 16 and 17); and challenge the determination of the applicant's interlocutory applications to the Tribunal (Questions 2, 5 and 6).

30 As an element of the test for the grant of leave out of time is the merits of the proposed appeal, and as submissions on the merits have been fully ventilated, for convenience I will leave aside for the moment the question of leave to proceed out of time, and consider the substantive grant of leave to appeal. In that regard, I will consider first the challenges to jurisdiction, standing and the applicability of the OC Act, which are undoubtedly questions of law.

Jurisdiction, standing and applicability of the OC Act

31 Questions 1, 3 and 4 of the proposed Notice of Appeal relate to whether the Tribunal had jurisdiction to hear and determine the application dated 17 February 2012. Question 1 asserts that jurisdiction had not been correctly invoked because there was no special resolution passed as required by s 18(1) of the OC Act to authorise the Owners Corporation to commence proceedings. Question 3 asserts error in the order made 4 April 2012 in granting leave to the existing applicant, the Owners Corporation, to join further applicants. This joinder was relied upon by the Tribunal in the orders dated 1 May 2012 as curing any difficulty arising from the absence of a special resolution.

32 Question 4 directly challenges this conclusion of Deputy President Lulham expressed in paragraphs 58 and 59 of his Reasons, which was to the effect that the proceeding prior to the joinder may have been irregular but was not a nullity, and the joinder and amendment cured any defect.

Subject to sub-s (2), an owners corporation must not bring legal proceedings unless it is authorised by special resolution to do so.
A special resolution is not required for an application to VCAT under Part 11 to recover fees and other money or to enforce the rules of the owners corporation.

34 There is no dispute that no special resolution was passed. The applicant says that a special resolution was required, and this submission was accepted by Deputy President Lulham.[14] The applicant then says that pursuant to s 43 of the VCAT Act the jurisdiction of the Tribunal was not correctly invoked. Section 43 of the VCAT Act provides:

The original jurisdiction of the Tribunal is invoked -

(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

(b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

(c) in any other way permitted or provided for by the enabling enactment.

35 Section 60 of the VCAT Act provides for joinder of parties as follows:

The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

The Tribunal may make an order under sub-section 1 on its own initiative or on the application of any person.

36 The applicant says that the Owners Corporation was not "entitled" by the OC Act to apply to the Tribunal because there was no special resolution passed. This was not cured by the addition of other applicants because other parties can only be joined to a proceeding already on foot.[15]

37 The applicant's argument is that the failure to properly invoke the jurisdiction of the Tribunal meant that the proceeding was a nullity, because of lack of jurisdiction, and not merely a proceeding irregularly commenced. Accordingly, the Tribunal lacked the jurisdiction to make any orders including the order joining the other applicants and the ultimate orders made as a result of the hearing on 1 May 2012.

38 Deputy President Lulham dealt with these submissions in his Reasons as follows:

Nevertheless, the proceeding was commenced. A filing fee was paid, a proceeding number issued and a file created. There may have been an irregularity in the proceeding, but the proceeding itself was not a nullity. The proceeding has been in existence since it was issued on 21 February 2012 and it will remain in existence until a final order is made.
The Tribunal could make Orders in the proceeding. Irregularities in proceedings may be cured by amendment, and, of course, the amendment is made in an Order. Apart from making an amending order, the Tribunal could, for example, on finding that the Owners Corporation had not complied with section 18(1), make orders for costs against the persons responsible for filing the Application.

39 He continued in the following paragraphs to find that the "proceeding existed on 4 April 2012" when the order was made giving leave to the Owners Corporation to amend the claim, including by joining further applicants; that pursuant to that order, three other lot holders, who are now the second to fourth respondents, applied to be joined; that as individual lot owners, they "are entitled to issue legal proceedings without 'resolving' to do so" and that they had standing to become parties to the application in their own capacity pursuant to ss 162 and 163 of the OC Act.[16]

40 Sections 162 and 163 of the OC Act provide as follows:

162. VCAT may hear and determine disputes

VCAT may hear and determine a dispute or other matter arising under this Act or the regulations or the rules of an owners corporation that affects an owners corporation (an owners corporation dispute) including a dispute or matter relating to

(a) the operation of an owners corporation; or

(b) an alleged breach by a lot owner or an occupier of a lot of an obligation imposed on that person by this Act or the regulations or the rules of the owners corporation; or

(c) the exercise of a function by a manager in respect of the owners corporation.

Who may apply to VCAT in relation to a dispute?
1. Any of the following persons may apply to VCAT to resolve an owners corporation dispute -

(a) a manager or former manager;

(b) a lot owner or former lot owner;

(c) the owners corporation;

(d) an occupier or former occupier of a lot;

(e) a mortgagee of a lot;

(f) an insurer under a policy taken out by the owners corporation;

(g) the director.

1A. A lot owner may apply to VCAT on behalf of an owners corporation to resolve an owners corporation dispute.

41 The applicant challenges Deputy President Lulham's conclusions in relation to ss 162 and 163 by questions 7, 8, 9 and 10 of the proposed notice of appeal. His argument is that as a manager appointed prior to the commencement of the OC Act he is not bound by the requirements on managers pursuant to that Act. Accordingly, a dispute in relation to his conduct as manager, including alleged breach of those obligations, is not "an owners corporation dispute" within s 162 because it does not arise under the OC Act. It follows that s 163 does not apply to confer standing on the lot owners because the dispute about his conduct is not "an owners corporation dispute".

42 The respondent's submissions in relation to these arguments are as follows. The respondent says that the Tribunal was correct in its analysis as to whether the proceedings were a nullity, having regard to the decision of the High Court in Berowra Holdings Pty Ltd v Gordon[17] ("Berowra Holdings"). In those proceedings a worker commenced proceedings in the District Court of New South Wales against his employer, claiming common law damages in respect of an injury suffered in the course of employment. Section 151C(1) of the Workers Compensation Act 1987 (NSW) provided that a person in the worker's position was "not entitled to commence court proceedings for damages in respect of the injury concerned" against the employer until six months had elapsed after notice of the injury had been given to the employer. The worker commenced proceedings within that six month period. The High Court held that this time limitation was not a precondition to the jurisdiction of the Court, and was a procedural requirement only. The Court held that a failure to comply with such a procedural requirement can be cured by the court in question having recourse to its own procedural rules.

43 By analogy with the facts in this case, s 151C(1) of the Act under consideration in Berowra Holdings used the language of entitlement that is also found in s 43 of the VCAT Act. Nevertheless, the High Court held that the limitation there, and by analogy the limitation here, is a procedural one only and does not interfere with the jurisdiction of the District Court, or here Tribunal, the source of which jurisdiction is to be found elsewhere. Assuming for the moment that the OC Act applied to govern the duties on the applicant, it follows that the Tribunal had jurisdiction over the dispute and the procedural failure to invoke that jurisdiction correctly could be cured by the Tribunal. The respondents to this application rely on this to say[18] that by the time of the final hearing other applicants with standing had been joined to the application.

44 The applicant has put his argument ably. On analysis, however, I consider that it fails for two principal reasons. First, it confuses conferral of jurisdiction with the invocation of it. Secondly, the applicant errs in his assertion that the OC Act does not apply to the dispute and to him as manager.

Conferral of jurisdiction as opposed to invocation or standing

45 Section 43 of the VCAT Act provides how the original jurisdiction of the Tribunal is invoked. It does not confer the jurisdiction. The original jurisdiction of the Tribunal is conferred on it by enabling enactments, of which the OC Act is one. The distinction between invoking jurisdiction and the conferral of it is made clear by the reference to conferral of jurisdiction in s 44 of the VCAT Act, in contrast to the reference to invoking jurisdiction in s 43, and by the definition of "enabling enactment". Section 44 provides:

In exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under this Act, the regulations and the rules. (emphasis added)

46 "Enabling enactment" is defined in the definition section of the VCAT Act as meaning "an enactment by or under which jurisdiction is conferred on the Tribunal".

47 In the case of owners corporation disputes, jurisdiction is conferred by s 162 of the OC Act. Who has standing to apply, i.e. who may invoke the jurisdiction, in relation to such a dispute is set out in s 163. Assuming for the present that the OC Act applies to the subject matter of this dispute and so s 162 confers jurisdiction on the Tribunal, (I will discuss this further shortly), in my view Mr Giurina's arguments fail even if the Owners Corporation was not able to invoke the jurisdiction under s 163(1)(c) for want of a special resolution authorising it to do so (that conclusion of Deputy President Lulham not being challenged on appeal).

48 First, I accept the respondents' submission that if the Tribunal had jurisdiction over the subject matter of the dispute, then by analogy with Berowra Holdings, if there was an error in invoking the jurisdiction it was procedural only; and resulted in an irregularity only which could be cured. Here the cure adopted was to join additional applicants, who were entitled to bring proceedings in their own rights as lot owners pursuant to s 163 (1)(b). This approach, pursuant to the orders made on 4 April 2012, was then adopted by Deputy President Lulham in his Orders and Reasons dated 1 May 2012.

49 I think the applicant is correct in so far as he asserts that, arguably, the cure of joining applicants to regularise the proceeding was imperfect. The cases on which he relies in this regard, Vero Insurance Ltd v and Stavrou and ors and Leonora Group ( Wonthaggi) Pty Ltd & Anor v Bass Coast SC[19] held that joinder requires a proceeding currently on foot. In Stavrou joinder was refused because the proceeding had already been determined. That is not this case. The paragraph in Leonora on which the applicant relies bears closer similarity to this case. There the Tribunal stated in relation to joinder under s 60 of the VCAT Act that:

If the Tribunal considered that it was in the interests of justice that a person should be joined it could join a person under that section. However, there would have to be a proceeding to which the person could be joined. Section 60 does not create the opportunity for such a person to start a proceeding where none already exists.

50 In Leonora the respondent sought summary dismissal of an application for review under the Planning and Environment Act 1987 on the basis that the objection was not stated to be by a person with the standing to seek review. The Tribunal regularised the proceedings there in question not by joinder of a person with standing (as was done here) but by amendment of the application. In doing so, the Tribunal referred to the obligations of the Tribunal to deal with the substantial merits of the case and to conduct proceedings with as little formality and technicality as possible.[20] These obligations applied equally to these proceedings at VCAT.

51 I think it is arguable that, consistently with Leonora, there were no proceedings to which the applicants could be joined. Further, that the joinder of the new applicants, even though they had standing in their own right, could not retrospectively regularise the proceedings commenced by the Owners Corporation. Arguably, rather than being joined to the proceeding commenced by the Owners Corporation, the new applicants should have been substituted for the existing applicant, the Owners Corporation, or required to bring their own application to overtake the earlier application brought without authority. If the Owners Corporation was to remain an applicant, strictly an order under s 165 (1)(ba) of the OC Act authorising Ms New to make the application on behalf of the Owners Corporation may have been required. In Wong v Network Pacific Real Estate Pty Ltd,[21] a case relied upon by the applicant in his further submissions on s 165 (1)(ba), proceedings first commenced by an owners corporation without a special resolution were discontinued and a new proceeding instituted by a lot owner who then sought authorisation pursuant to s 165(1)(ba).

52 If there was such error, then in my view it could justify leave to appeal only in respect of the orders made by Member Wentworth on 4 April 2012 (in so far as they depend on a regularised proceeding as at that date) and the orders of Deputy President Lulham dated 1 May 2012, only in so far as they depend solely on those orders. This is because from the joinder of the individual lot owners, and so by the time of the substantive hearing before Deputy President Lulham on 1 May 2012, there were applicants, being the individual lot owners, with the standing to invoke the jurisdiction conferred by s 162 of the OC Act. This is at the heart of the conclusion of Deputy President Lulham on jurisdiction and standing[22]. From that time, whether or not the Owners Corporation was properly an applicant was immaterial. I was not directed to any requirement in the OC Act or in the VCAT Act for the Owners Corporation to be a party to an owners corporation dispute, and there is no requirement under general principle unless it was to be ordered to take some action, which it is not by the orders dated 1 May 2012. The orders are equally effective if the reference in the orders to "First Applicant" is changed to a reference to the Owners Corporation by name. The declaration made by order 1 is effective whether or not the Owners Corporation was a party.

53 I consider that only order 3 made by Deputy President Lulham clearly depends for its operation on a proceeding extant prior to the joinder of the other applicants. That is because that order apparently intended to declare a breach of the orders made 4 April 2012. Orders 1, 2 and 5-8 dated 1 May 2012 turn on the substantive matters before Deputy President Lulham, being the termination of the applicant's management agreement (order 1); his breach of statutory duties (order 2); and consequential orders (orders 5-8). By order 4 Deputy President Lulham declared that Mr Giurina had attempted to deceive the Tribunal within s 78(1) of the VCAT Act by purporting to withdraw the proceeding when it was solely in the name of the Owners Corporation. I think it arguable that an order under s 78(1) depends on there being an extant proceeding at the time of the purported withdrawal. I express no concluded view as the parties did not seek to analyse the different orders dated 1 May 2012 in this way. The applicant sought, and the respondents opposed, leave to appeal out of time in respect of them all.

54 It is clear from Hulls that leave to appeal is not to be granted in respect of arguable errors that have been overtaken by events, and so do not occasion substantial injustice, even if error was made. The orders made 4 April 2012 were overtaken by the joinder of the other applicants and the substantive hearing. The central findings and orders dated 1 May 2012 are grounded in the jurisdiction conferred by the individual lot owners becoming applicants. No distinct attack is made on orders 3 or 4 dated 1 May 2012 other than by Questions 5 and 6, which challenge those orders for different reasons, and fail for the reasons later set out in this judgment. Accordingly, I do not consider that there is any injustice in allowing technical errors as to whether or not the individual lot owners should have been joined or substituted, and whether Owners Corporation should have remained an applicant, to go uncorrected. I will protect the applicant's right to seek leave to appeal from any further orders made by the Tribunal that depend on the validity of orders 3 and 4 dated 1 May 2012, by making it clear that these reasons are not intended to amount to an estoppel as to whether leave to appeal should be granted in respect of such later orders.

55 Following reservation of my judgment, the applicant forwarded a further case in support of his argument on s 43, Herald and Weekly Times Pty Ltd and Anor v State of Victoria and Ors.[23] In that case, the Court of Appeal conducted its discussion of the Tribunal's jurisdiction by reference principally to s 43, but I do not consider that my analysis of ss 43 and 44 of the VCAT Act is inconsistent with the consideration there given to those sections by the Court of Appeal. That case was concerned with different issues. What the Court was there concerned with was an application (in relation to publication of terms of settlement) which was not otherwise within the Tribunal's jurisdiction, sought to be made in substantive proceedings conceded to be within the Tribunal's jurisdiction. The Court held that the Tribunal had no jurisdiction to hear that application unless it was sufficiently related to the proceeding within its jurisdiction. It held it was not. The facts are different here. Assuming for current purposes that the dispute was an owners corporation dispute within s 162, then the lot owners could invoke the jurisdiction of the Tribunal under s 163 of the OC Act and s 43 of the VCAT Act, even if the Owners Corporation, for want of a special resolution authorising it to do so, could not. Thus the lot owners' proceeding was within jurisdiction independently of the proceeding commenced in the name of the Owners Corporation.

56 I have considered whether there is an additional basis for dismissing the applicant's objections to jurisdiction and standing based on s 163(1A). As set out earlier, that subsection provides that "A lot owner may apply to VCAT on behalf of an owners corporation to resolve an owners corporation dispute". On its face, that subsection may apply to the application dated 17 February 2012 signed by Ms New, naming the Owners Corporation as the applicant, if it was Ms New's intention to make it on behalf of the owners corporation. The Tribunal took the view[24] that it was unnecessary to consider whether the three individual lot owners were seeking to sue on behalf of the owners corporation under that sub-section and thus whether the Tribunal could authorise them to do so under s 165(1)(ba). It appears from this brief reference in the Reasons that there were some submissions put in this regard below. They were not put again before me by either party at the hearing of the application. I gave the parties the opportunity to put further submissions if they wished.

57 Each has done so. Those submissions make it clear that the respondents do not seek to rely on s 163(1A) to justify the orders made by Deputy President Lulham. The applicant says, as he said below, that the application was not made by Ms New on behalf of the Owners Corporation, and, further, that if that was her intention she was required to seek authorisation pursuant to s 165(1)(ba) prior to the substantive hearing.[25]

58 Having regard to those submissions and to the absence of any finding of fact made by the Tribunal as to Ms New's intention I do not consider this issue further.

Conferral of jurisdiction: application of the OC Act

59 My discussion to date has assumed that the dispute before the Tribunal arose under the OC Act and so s 162 of the Act conferred jurisdiction on the Tribunal. Deputy President Lulham found that it did in the following passages from paragraphs 68 and 75 of the Reasons:

The claim that Mr Giurina 'hand over all financial documentation and funds' of the Owners Corporation to the Owners Corporation, and Mr Giurina's opposition to doing so, is undoubtedly 'an owners corporation dispute' concerning the exercise of a function by a manager, falling within s 162. Ms Ricotta, Ms Picone and Ms New are Lot owners, who have standing under s 163(1)(b).

I reject Mr Giurina's ninth submission, that the date of the management contract is relevant to the Tribunal's jurisdiction. Section 162 of the OC Act confers jurisdiction to determine an owners corporation dispute. The date of the dispute may be relevant, but the date on which the contract was made is irrelevant.

60 By Questions 7, 8 and 9 of the proposed notice of appeal the applicant challenges those portions of the Reasons. I do not consider that he has shown any arguable error in the Tribunal's conclusions for the following reasons.

61 The first difficulty with the applicant's submissions is that he has adopted inconsistent positions in relation to the applicability of the OC Act. On the one hand he relies on s 18 of that Act as applying so as to submit that the Owners Corporation did not properly invoke the jurisdiction of the Tribunal. That is, he asserts that the Act governs the operation of an owners corporation even though it was in existence prior to the commencement of the Act. On the other hand, he submits that the duties imposed by Part 6 of the OC Act, including s 122 (which he was held to have breached) and s 127 do not apply to him because he was appointed prior to the commencement of the Act. He says they apply only to managers appointed after the commencement of the OC Act, and appointed in accordance with s 119 of the Act. In support of this proposition he says that the OC Act does not have retrospective operation and relies on comments to this effect in a VCAT decision.[26]

62 The applicant has not advanced any basis for distinguishing between the operation of the Act as it applies to managers appointed prior to its commencement, and its operation as it applies to body corporates in existence prior to its commencement. In my view, there can be no distinction. In the absence of clear words to the contrary, the Act would apply to both existing situations in the same way.

63 In determining how it applies, the starting point is to consider what is meant by the general presumption that in the absence of clear words statutes do not operate retrospectively. The presumption against retrospectivity does not mean that legislation cannot impose new duties on persons in specified roles if those persons have already been appointed to those roles prior to the legislation commencing. The presumption means only that those duties only apply from commencement of the new legislation, not to conduct prior to commencement. It is entirely common place for legislation to impose new duties on persons in existing roles (for example the obligation, new at the time, for car drivers and passengers to wear seat belts; new obligations imposed on directors of corporations, and many other similar examples) and for those new duties to govern their conduct once the legislation commences, although not their conduct before commencement.

64 Turning to the particular Act here in question, the OC Act, I accept the submissions of the respondents that the clear intention of the Act was create a regulatory regime for owners corporations whether already in existence or not. This is made clear by the purpose section of the Act which provides:

(a) to provide for the management, powers and functions of owners corporations; and

(b) to provide for appropriate mechanisms for the resolution of disputes relating to owners corporations; and

65 Further indications are contained in Schedule 2, which provides transitional and savings provisions. In particular, clause 5 of that Schedule provides that any rules of a subdivision body corporate in force immediately before commencement of the OC Act, continue in force and are deemed to be rules of the owners corporation under the OC Act, to the extent that they are not inconsistent with the OC Act or regulations under the OC Act. Similarly, clause 8 provides for the continuance in force of resolutions and delegations (such as those to a manager) that are not inconsistent with the new Act. Clause 8(3) provides that any existing delegation continues in force until the first annual general meeting of the owners corporation after commencement of the OC Act, if the existing delegation is inconsistent with the OC Act, and, any other case, until revocation by the owners corporation under the OC Act.

66 Clause 9 of Schedule 2 deals with managers for fee or reward. Under the OC Act a new requirement was added that such managers be registered. Clause 9 provides for a transitional period to allow registration. It does not apply in terms to a manager such as Mr Giurina, who was a manager without fee. But it is not to be assumed from this omission that managers without fee are not regulated by the new Act. Schedule 2 is clearly directed to those matters which require transitional provisions, not every aspect of change under the new Act. A transitional provision was necessary in respect of managers for fee, now required to be registered.

67 There are also, in my view, indications in the Second Reading Speech that it was the clear intention of the then Bill, now Act, to be a comprehensive regulatory system, governing both existing and new arrangements. In particular, the Second Reading Speech[27] specifically refers to the intention to confer jurisdiction on VCAT and the need to better regulate managers. In the further submissions he has made at my invitation, the applicant says that the Second Reading Speech distinguishes between professional managers and voluntary managers such as himself and that it supports his interpretation of the Act that the obligations imposed on managers are imposed on professional managers only. I consider that he is incorrect in this regard. On my reading, where the discussion in the Second Reading Speech is limited to professional managers that is made clear by the adjectives "paid", as in the reference to the new requirement for "paid managers" to be registered, or "registered" as in the reference to availability of a public register of professional managers. Where these qualifiers are not used, relevantly in relation to the discussion of the duties to be imposed on "managers", in my view it is clear that the reference is to managers generally, whether paid or unpaid.

68 In conclusion, I consider that the duties imposed by Part 6 of the Act apply to conduct that occurred after the commencement of the Act. Conduct prior to commencement would, unless there was clear intention to the contrary, continue to be governed by the rules then applying (whether at general law or statutory). Deputy President Lulham did not err in his conclusion, at paragraph 75, that the date of the management contract is irrelevant to the Tribunal's jurisdiction. What is relevant is the date of the impugned conduct. Mr Giurina's conduct in question in this dispute occurred after the commencement of the OC Act and is accordingly regulated by it, notwithstanding that he was appointed before its commencement.

Summary in relation to jurisdiction, standing and the applicability of the OC Act

69 In conclusion, I do not consider that any error has been demonstrated in the Tribunal's reasons in so far as they conclude that the applicant's conduct as manager in question in these proceedings was governed by the Act and so the dispute relating to his conduct arises under the Act and is a dispute within s 162. Accordingly, the Tribunal was correct in its determination that jurisdiction was conferred on VCAT.

70 Nor do I consider that was any error in the Tribunal's determination that the individual lot owners had standing to invoke that jurisdiction. It follows that any error in the invocation of the Tribunal's jurisdiction occasioned by the lack of a special resolution authorising the Owners Corporation to bring proceedings was adequately corrected by the addition of the other applicants from 18 April 2012 for the purpose of the hearing on 1 May 2012. Any error was an irregularity in accordance with Berowra Holdings and could be, and was adequately, cured. If the Owners Corporation should, strictly, have been removed as an applicant and was not, then that was an error, but not one that has occasioned any substantial injustice arising from the orders dated 1 May 2012 that are directed to Mr Giurina's conduct as manager so as to justify the grant of leave to appeal.

71 For these reasons, and subject to there being no estoppel in relation to any challenge to further orders made dependent on orders 3 and 4 dated 1 May 2012, I would refuse leave to appeal in respect of Questions 1, 3, 4, 7, 8, 9 and 10 of the proposed notice of appeal, even if the application was made within time.

Challenges to the Tribunal's findings that the applicant breached his duties

72 Mr Giurina has put an alternative argument as to error in the findings of Deputy President Lulham that his conduct as manager breached the OC Act, in the event that I am not persuaded that the Tribunal was in error in finding that the Act applied. These challenges appear as Questions 11, 12 and 13 of the proposed notice of appeal.

73 Question 11 challenges the Tribunal's declaration 2(d) dated 1 May 2012 that the applicant:

(d) breached his duties under section 122(1)(b) of the Owners Corporations Act 2006 by failing to disclose to the other Lot owners the Court proceedings issued against the First Applicant, and by settling those proceedings without obtaining approval from the Applicants.

(a) must act honestly and in good faith in the performance of the manager's functions; and

(b) must exercise due care and diligence in the performance of the manager's functions; and

(c) must not make improper use of the manager's position to gain, directly or indirectly, an advantage personally or for any other person.

(a) holds all money held on behalf of an owners corporation on trust for the owners corporation; and

(b) must account separately for the money held for each owners corporation by the manager.

75 The Tribunal relied on Mr Giurina's own evidence to conclude that he had failed to disclose the fact of the proceedings or their settlement.[28] Mr Giurina says in Question 11(g) that the Tribunal misunderstood his evidence. This cannot be established in the absence of the transcript.

76 His argument as to the balance of Question 11 is that the Tribunal erred in law in reaching the findings because it did not first specify the criteria to be employed in determining breach of s 122(1)(b). He relies on passages from the decision of Cavanough J in XYZ v State Trustees Ltd[29] ("XYZ") and the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[30] ("Macedon Ranges") as authority for the proposition that the Tribunal erred in failing to specify the criteria employed in determining whether or not he had breached the statutory requirement of due care and diligence. He also asserts that the Tribunal erred in failing to consider the requirements of his management contract in determining whether or not he had breached the statutory requirement, in reliance on Caruso and anor v Kite and anor[31] ("Caruso").

77 In my view all these cases are distinguishable on their facts from the current application. In XYZ the trial judge held on appeal from an order of VCAT that the Tribunal had "arguably" erred in failing to address the statutory standard of incapacity required before an administrator can be appointed under the Guardianship and Administration Act 1986. However, in that case counsel for the person in question had put a submission to VCAT as to the standard, which was not then addressed in the reasons, and the transcript and reasons also suggested to the trial judge that the Member had set the standard too low. In Macedon Ranges, there was substantial evidence before the Tribunal of community opposition to the proposed introduction of gaming machines. Although there was no submission put below as to the significance of this issue, the Court held that it was "a central issue" and the Tribunal had erred in law by ignoring it. In Caruso, the contract in question was agreed to be the determinant of the relevant duties. The trial judge held on appeal that the Tribunal had erred in failing to explain the legal basis for its decision, and, in particular in failing to set out how it interpreted this contract.

78 Here, the applicant concedes that he did not put any submission below as to the statutory standard to be met. His evidence was certainly not ignored- the Tribunal based its decision on it. There was no agreement that it was his management agreement that determined his duties, and, indeed, the Tribunal's determination that the dispute was an owners corporation dispute depended on the Tribunal determining that he was bound to comply with the statutory duties. If there was something to the contrary in his management agreement, that perhaps may have been a relevant matter to consider in considering how the statutory duties applied in his case. In my view, although the management agreement gives him wide powers, it would be construed within the usual principles of principal and agent. I accept the submission of the respondents[32] that consistently with those principles, the applicant was required as agent of the Owners Corporation to disclose to it, and to lot owners, material information he possessed in his capacity as manager.

79 As to whether failure to disclose the fact of the proceedings against the Owners Corporation and their settlement was material information that should have been disclosed, I accept the respondents' submissions[33] that on the facts of this case, it was open to the Tribunal to conclude that it was. I do not consider that consideration of the management agreement could have lead to any different result, so as create error of law from failure to consider it. Accordingly, the applicant's challenge to the Tribunal's conclusion that he had breached his duties under s.122(1)(b) is one of fact, not law, and so not appellable under s.148.

80 In reaching these conclusions I have considered the authority the applicant now relies upon to establish the standard of "due care and diligence", ASIC v Gallagher[34]. In that case, the Court held that similar wording in relation to the duties of directors imposed an objective standard, being what an ordinary person, with the knowledge and experience of the director, might be expected to have done in the circumstances if he was acting on his own behalf. Stating the test in this way does not confer on the applicant as manager the authority to act unilaterally for the Owners Corporation on the basis of his own judgment of the situation. What it does is impose on the agent the duty to act, in the interests of his principal, as he would in his own interests. In my view, a manager acting on his own behalf would want to know that legal proceedings had been commenced against him, and determine whether or not to settle them. That is what the Tribunal held the applicant did not allow the Owners Corporation to do here. Further, the Court said in that case, which concerned an appeal from a Magistrates Court determination that the standard had not been breached, that the question of breach is a factual one, requiring an investigation into the actual duties of the director in the particular case. This supports my view that the challenge here is essentially one of fact.

81 Question 12 challenges the Tribunal's conclusions that the applicant breached the duties cast on him by s 122 (1)(c) and s 122 (2). The Tribunal reached these conclusions on the basis of Mr Giurina's own evidence that he required a "contribution" from each of the other four lot owners of $2000, which he deposited into his own personal bank account, rather than into the Owners Corporation bank account he also operated. The Tribunal described this as "mixing trust money with his own funds". On his own evidence the applicant did not pay his own contribution at the same time, asserting that he could pay it when called for. The Tribunal described this assertion as "disingenuous" on the basis that "as manager, he would be the one to call for it. The conflict of interests is plain to see."[35]

82 The applicant now says by Question 12 that the Tribunal erred in failing to take into account that the payment was an "extraordinary fee" within s 24(5) of the OC Act; that s27(3) of the Act permits managers to pay fees into a bank account "of the manager of the owners corporation"; and clause 7 of his management agreement which authorised him to pay invoices for the owners corporation. In his oral submissions he says the significance of the payment being an "extraordinary fee" is that no meeting was required to authorise it; an owners corporation is not required by s27 to have a bank account; and any form of "holding", including in his own personal bank account is permitted by s122(2).

83 The respondents say that the applicant did not before the Tribunal characterise the amount as an "extraordinary fee". In any event, the respondents say that the characterisation of the required amount does not determine how it must be treated by a manager under the Act. The applicant conceded that he did not put this argument below, but says the Tribunal was bound to consider s27(3).

84 I consider the respondents are correct when they say that the exact nature of the fee is irrelevant to whether or not the Tribunal was entitled to find on the evidence before it that the applicant made improper use of his position (by failing to pay his own contribution) and failed to account separately for the money he obtained from the other lot owners. I do not consider that the applicant has shown any arguable error of law by the Tribunal in reaching these findings. In particular, to the extent that s27(3) permits monies held on trust to be paid into a bank account of the manager, it must be read with the obligation of the manager under s122(2)(a) to hold that money on trust. In other words, it may be permissible for a manager to operate an account in his own name, perhaps particularly where the owners corporation for some reason does not have its own account, but as trustee. In my view the Tribunal was manifestly entitled to find that payment of these monies by the applicant into his personal bank account, particularly given that the Owners Corporation in fact had a bank account that he operated, was a breach of his obligations by mixing trust funds with his own personal funds.

85 Question 13 is related, in that the applicant asserts that the Tribunal erred in its conclusion as to breach of s122(2) because there was no evidence of the Owners Corporation accounts. This Question raises no arguable error of law occasioning substantial injustice to the applicant for two reasons. First, such evidence was not necessary. The Tribunal relied on Mr Giurina's own evidence as to how he deposited the funds to reach this conclusion.

86 Secondly, there was no evidence of the Owners Corporation accounts because the applicant had failed to produce it, as required by the order made 4 April 2012. Even if there is, as discussed earlier, a jurisdictional problem with this order, the applicant cannot rely on his own failure to produce evidence to justify appeal. I refuse leave to appeal in respect of Questions 11, 12 and 13.

87 By Questions 15 and 17 the applicant asserts error of law in the Tribunal's findings in relation to a meeting of four of the five lot owners on 24 July 2011, and the conclusion that the applicant's management agreement was terminated by resolution at that meeting.

88 In my view, these Questions really raise factual challenges, not questions of law. A challenge as to whether a finding of fact is supported by the evidence only amounts to a question of law if there was no evidence on the basis of which that finding could have been made. It appears that the applicant has sought to characterise these challenges as questions of law by framing them in terms of there being "no evidence", or "uncontested evidence" of certain matters. The first difficulty with this submission is that the transcript and all the evidence below are not in evidence before me, and so the applicant cannot discharge the onus of showing, as he asserts, no evidence or uncontested evidence on a point, unless it is conceded, which it is not. Further, and substantively, the respondents say there was evidence in relation to the meeting, and to the extent that is reflected in the Reasons I accept that submission.[36] I consider that it was open to the Tribunal to reach the factual findings it did in relation to the meeting on the basis of the evidence recited in the Reasons.

89 The applicant also seeks by Question 17 to characterise the Tribunal's findings as being legally wrong on the basis of the formal requirements of meetings; his rights under his management agreement to prepare agendas, convene and chair meetings, be notified of all meetings and be permitted to attend all meetings; and the inability of the Owners Corporation under the management agreement to appoint any other person to perform his duties.

90 I accept the respondents' submission that here the applicant seeks to give the terms of his management agreement primacy over the requirements of the OC Act as to meetings. For the reasons given earlier, the OC Act applied to the applicant's duties as manager notwithstanding that he was appointed prior to its commencement. By virtue of clause 8(3) the delegation of powers to him by the management agreement, to the extent it was inconsistent with the OC Act, lapsed after the first annual general meeting after the commencement of the OC Act. In particular, s. 119 of the OC Act permits an owners corporation to revoke the appointment of a manager and to appoint another manager. Any provision of his management agreement that purported to prevent such revocation and appointment of another manager would be inconsistent with that section. The Act commenced on 31 December 2007 and accordingly any inconsistent delegation in the management agreement had well and truly lapsed by 2011. For these reasons, there was no error in the Tribunal reaching its conclusions in relation to the effect of the meeting held 24 July 2011 by having regard to the requirements of the OC Act, not the management agreement.

91 Question 16 challenges the conclusion that the applicant's appointment was terminated at the meeting in a different way. It asserts that the Tribunal erred in law in failing to address the applicant's submission that a resolution could not have been passed to terminate his appointment because the three individual lot owners who are now the respondents, and voted for termination of the agreement, were in arrears and so could not vote pursuant to s94 of the OC Act. I accept that failure to address an important submission can be an error of law. The respondents do not dispute that there was evidence they were in arrears, and that the Tribunal did not give reasons for rejecting the applicant's submission as to the effect of s94, which is recorded at paragraph 37 of the Reasons but not subsequently discussed.

92 I accept the applicant's case that by Question 16 he raises an arguable error of law. In the discussion of the meeting, the Tribunal does not address the s94 submission at all, let alone explain on what basis it is rejected. It is critical to the Tribunal's reasons at this point that a simple majority of the lot owners present voted for termination of the agreement.[37] This is only maintainable if those lot owners were entitled to vote, and the submission as to s94 was to the effect that they were not so entitled.

93 It is not enough, however, to justify leave to appeal that an arguable error of law is established. The error must be relevant to the relief sought. Further, there must be substantial injustice in allowing the error to go uncorrected, being injustice to all parties, not just the applicant. Here the substantive relief sought is to quash the orders dated 1 May 2012 and dismiss the proceeding. It is clear from the other orders sought in the proposed notice of appeal that the intended effect is that the applicant remain as manager of the Owners Corporation. Any error in the Tribunal's conclusion that the management agreement was terminated at the meeting, for want of lot owners who could vote, does not impeach the other finding and orders of Deputy President Lulham as to breach by the applicant of his duties under the OC Act. On the basis of these findings, Deputy President Lulham also concluded that the applicant had repudiated his management agreement, which repudiation had been accepted. For the reasons set out below in relation to Question 14, I do not consider any error justifying the grant of leave to appeal is shown in that conclusion. Accordingly, there is an alternative basis for the conclusion that the management agreement was terminated.

94 For this reason, I do not consider that substantial injustice would be occasioned by the refusal of the grant of leave in respect of Question 16, notwithstanding that arguable error of law is shown. Indeed, in the circumstances of this case, I consider that to grant leave on this basis would be unjust to the respondents, given that the ultimate orders in relation to the applicant as manager are otherwise justifiable.

95 Question 14 challenges the Tribunal's conclusion at paragraph 79 of the Reasons that by virtue of his conduct he had repudiated his management agreement. The applicant asserts that the Tribunal erred as to the legal requirements of repudiation. He asserts on the basis of Laurinda Pty Ltd and ors v Capalaba Park Shopping Centre Pty Ltd[38] ("Laurinda") that the test for repudiation is whether:

viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it.

96 The applicant also asserts that the fact relied upon by the Tribunal as constituting acceptance of repudiation, the commencement of proceedings, could not be such acceptance because there was no evidence that the other lot owners were aware of the conduct said to be repudiating and the Owners Corporation was not authorised to commence the proceedings.

97 In relation to this assertion, the application itself shows that the other lot owners had some knowledge of the conduct that was later held to be repudiating. The annexure to question 15 of the application states that the decision to terminate Mr Giurina's services was based on, amongst other matters, the collection of monies from the lot owners for contractor payments without paying them to the contractor. If the commencement of the proceeding could not be acceptance because the Owners Corporation was not authorised to commence proceedings, the subsequent addition of the other applicants who then prosecuted the application was certainly such acceptance. Any error by the Tribunal in referring to commencement of the proceeding as being the acceptance has thus not occasioned any substantial injustice to the applicant.

98 The alleged failure to properly apply the Laurinda test for repudiation rests on the applicant's assertion that he was entitled to put the monies into his own account and to settle the litigation. For the reasons given earlier, I do not consider any error is demonstrated in the Tribunal's determination of these matters, and accordingly nor is error demonstrated in the determination that the applicant disavowed fundamental obligations under his management agreement, read, as it must be, in accordance with the OC Act.

99 For these reasons, I refuse leave to appeal in respect of Questions 14, 15, 16 and 17.

Challenges to the determination of the applicant's interlocutory applications

100 Question 2 challenges the Tribunal's determinations by the orders of 2 April and 4 April 2012 not to hear the applicant's application for summary dismissal as a discrete application, and what is claimed to be a failure to provide reasons for doing so. The applicant relies on the statement of the Tribunal's powers on an application for summary dismissal under s 75 of the VCAT Act by Deputy President McKenzie in Re Norman and Australian Red Cross Society[39] in support of this Question.

101 In my view, these statements of the Tribunal's powers do no more than show that the Tribunal may hear an application for a summary dismissal prior to the full hearing, not that it must. In determining how to proceed, the Tribunal is entitled to take into account the shortness of time to the hearing, which is given as a reason by Senior Member Vassie in his orders of 3 April 2012. Similarly, the Tribunal on 4 April 2012 was entitled, and indeed obliged, to take into account that the current applicant, Mr Giurina, had not served his application for summary dismissal. The respondents were entitled to service, so they could be heard in opposition. I consider that sufficient reasons for declining to hear his application for summary dismissal as a discrete application emerge from order 3 made 3 April 2012 and from order 1 made 4 April 2012.

102 In both instances, Mr Giurina's right to challenge the substantive application on the grounds of lack of a special resolution under s18 of the OC Act and the other matters asserted in his application for summary dismissal was preserved, on the basis that he could put them by way of defence to the substantive application. He asserts on the basis of comments made in the Tribunal decisions Guida v Toll Ipec Pty Ltd and anor[40]I and Slater v Veda[41] that his application for summary dismissal should have been heard separately because it alleged want of jurisdiction. These two cases were determinations of s75 applications. All they establish in my view is that a claim that the Tribunal lacks jurisdiction can be a basis for summary dismissal, and that it may be heard as a discrete application, again not that it must be.

103 In this instance, the claim of lack of jurisdiction was a complex one, embedded in the facts of the substantive dispute. Other matters were also asserted in the application for summary dismissal. The Reasons for the orders dated 1 May 2012 show that it would have been practically difficult to separate out the questions to be determined on the applicant's application for summary dismissal from those raised by the substantive application. Accordingly, I am not satisfied that there was any error of law made by the Tribunal in determining that the application for summary dismissal be heard by way of defence, nor any material injustice to the applicant in proceeding in this way.

Purported withdrawal of the Owners Corporation application

105 By Questions 5 and 6 the applicant challenges the Tribunal's approach to his application, purportedly on behalf of the Owners Corporation, to withdraw the application dated 17 February 2012.

106 By Question 5, he asserts that the Tribunal erred in not hearing this application, and in failing to give reasons for doing so. As the respondents point out, the actual decision not to allow the withdrawal was made not by the Tribunal as constituted by a member, but by the Registrar, as evidenced by letter from the Registrar dated 18 April 2012. That decision is not challenged in this application, and may not be challengeable under s148. I express no view as to that. In any event, the purported withdrawal was the subject of consideration by Deputy President Lulham. His findings on the facts support the decision of the Registrar. To the extent Question 5 challenges those findings, it principally asserts factual error in my view, rather than legal error.

107 The respondents say that the legal argument put by the applicant in Question 5, that relies on the presumption that the seal of the Owners Corporation was validly used, was not put below. In any event, they say the argument must fail. I agree with that proposition for the reasons advanced by the respondents [42], being in essence that the seal was not, on the applicant's own evidence, used in accordance with sections 20 and 21 of the OC Act. Further, as a matter of substance, as well as form, the whole of the findings of Deputy President Lulham also establish that the seal was not "properly used" within section 22. That section creates a presumption that the common seal has been properly used, but it is a rebuttable presumption. Here the effect of the Tribunal's findings is that the majority of lot owners did not authorise the use of the seal to withdraw the proceedings, in fact did not even know it had been so used, and that the applicant's appointment had been terminated prior to his use of the seal for that purpose. The current respondents plainly show that in this instance the seal was not "properly used" within that section.

108 By Question 6, the applicant asserts that the Tribunal erred in law in determining that he had attempted to deceive the Tribunal within s78(1)(e) of the VCAT Act by the application. In oral submissions, he says that the error of law in this conclusion, as opposed to any error on the facts, was that the Tribunal did not specify the criteria it was employing to reach the conclusion and so did not disclose its path of reasoning.

109 The relevant portions of s 78 of the VCAT Act provide as follows:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

(e) attempting to deceive another party or the Tribunal; or

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

determine the proceeding in favour of the applicant and make any appropriate orders; or
order that the party causing the disadvantage be struck out of the proceeding;

(3) The Tribunal's powers under this section are exercisable by the presiding member.

110 The Tribunal set out the evidence on which it relied in reaching the conclusion that the applicant had attempted to deceive the Tribunal within s 78(1)(e)[43]. That evidence was abundantly capable of supporting a finding that the applicant's conduct was intentional, was designed to preclude the hearing of the application without the knowledge of the other lot owners, and was deceptive, because the applicant failed to make it clear that the purported withdrawal by the Owners Corporation and his purported acceptance of it as respondent were in fact made by the same person. The Tribunal also noted Mr Giurina's submissions that he was entitled to act in this way, because he remained the manager of the Owners Corporation, and its rejection of those submissions.[44]

111 The section is designed to discipline a party who disadvantages another party, by appropriate procedural orders. It does not create an offence. There is no sanction within s 78(2) imposed by the orders and reasons dated 1 May 2012. Given these matters and the undisputed facts as to what occurred I do not consider that the Tribunal was required in this instance to do more by way of elaboration as to how it interpreted s 78(1)(e) and applied it to these facts. The findings also amply showed why the current applicant was not permitted to withdraw the application. I refuse leave to appeal in respect of Questions 5 and 6. I do so without intending to create any estoppel as to a challenge to any further orders made that depend on the jurisdictional basis of order 4, as set out earlier.

112 All of the orders sought to be impugned were made more than 28 days before the institution of these proceedings. The respondents say that leave out of time should be refused. In respect of the earlier orders, they were interlocutory, and it may be permissible in my view for a party aggrieved by an interlocutory order to await the final order before appeal. The effect of the interlocutory order may be overtaken by the final order. Further, it may also be desirable, in the interests of discouraging interlocutory appeals.

113 Accordingly, I have first considered whether leave to appeal out of time should be granted in respect of the orders dated 1 May 2012, but communicated by letter dated 30 May 2012, said to have been received on 31 May 2012. The application for leave to appeal in respect of those orders should have been commenced by 28 June 2012. It was commenced just over two weeks later, on 16 July 2012.

114 The explanation give by the applicant for not instituting proceedings within 28 days of receipt of those orders, is that he was awaiting receipt of the audio disc of the proceedings. The explanation is not detailed, but I consider it broadly sufficient to justify extension given that the period of time is relatively short. His proposed appeal although mostly without merit, is not entirely so in respect of the joinder of the individual applicants as the cure for the commencement of the proceedings by the Owners Corporation without authorisation. Accordingly, I will grant leave to appeal out of time the orders dated 1 May 2012, but, for the reasons given earlier refuse leave to appeal.

115 For the same reasons, I grant leave to appeal out of time the orders made 4 April 2012, but refuse leave to appeal.

116 In relation to the orders made 3 April 2012, I do not consider that there is any arguable error, and I refuse leave to appeal out of time and leave to appeal.

117 The applicant has established arguable error of law in relation to the joinder of the individual applicants as the cure for the irregular commencement of the proceedings, and in relation to the Tribunal's failure to properly address his submission as to the inability of lot owners in arrears to vote at the meeting held 24 July 2011. For the reasons set out herein, however, I do not consider that substantial injustice has been occasioned to the applicant in respect of those matters, even if errors. There would also be injustice to the individual respondents in granting leave to appeal given that the core findings and orders of Deputy President Lulham as to the applicant as manager of the Owners Corporation are unassailable.

118 I refuse leave to appeal and dismiss the originating motion. I will hear the parties as to costs if required.

[2] Part of EG-3 to Mr Giurina's affidavit sworn 21August 2012.

[4] I rely on the orders made 3 and 4 April 2012; Mr Giurina's attempt at withdrawal of the application by letter dated 11 April 2012 in his claimed capacity as delegated officer of the Owners Corporation; and the letter from the Tribunal in response dated 18 April 2012, which refers to "the Applicant" and the contact with the "Applicants solicitors".

[6] See paragraph 8 of the Reasons. This paragraph refers to paragraph 7 of the orders made 4 April 2012 but the order was in fact paragraph 8 of those orders.

[13] [1998] 1 VR 83 at 90, line 2.

[14] Paragraphs 56 and 57 of the Reasons.

[15] Vero Insurance Ltd v and Stavrou and ors [2004] VCAT 1193 at [6] and Leonora Group ( Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233 at [2].

[18] Paragraph 19.13 of counsel's written submissions.

[20] Sections 97 and 98 of the VCAT Act, discussed at [8] of Leonora.

[24] Paragraphs 72 and 73 of the Reasons.

[25] In reliance on Wong v Network Pacific Real Estate Pty Ltd [2012] VCAT 791, decided after the publication of Deputy President Lulham's orders and reasons.

[26] Camilleri and ors v Oldroyd and ors [2011] VCAT 279 at [20]. The comment is dicta, and seems inconsistent with the Tribunal there exercising jurisdiction.

[27] Legislative Assembly 20 July 2006; Legislative Council 12 September 2006.

[32] Respondents' written Outline of Submissions at [25.5].

[36] Reasons, [36]-[37] summarise the evidence and the applicant's submissions in relation to the meeting; [80] -[85] set out more of the evidence and the Tribunal's findings in respect of same.

[38] [1989] HCA 23; (1988-1989) 166 CLR 623, at 658 per Deane and Dawson JJ.

[42] Respondents' Outline of Submissions [21.3]-[21.4]

Corporation Act 2006

Civil and Administrative Tribunal Act 1998

Owners Corporation Act 2006

Subdivision (Body Corporate) Regulations 2001

Corporations Act 2006

Compensation Act 1987

Environment Act 1987

Administration Act 1986

At a glance

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Legislation Cited (8)

Cases Cited (2)