Ghabour v The Owners - Strata Plan No. 53284 [2019] NSWCATCD 18 | Case summary

NCAT Consumer and Commercial|2019-02-19|Before: Community Association DP

Introduction

This is an application by the owner of Unit XX, XXX-XXX The XX, Gymea, NSW, 2227 (being Lot 10 in Strata Plan 53284) (the unit) seeking relief in the Tribunal pursuant to ss 24, 126, 131 and 232 of the Strata Schemes Management Act 2015 (SSMA). That relief is sought in respect of certain notices and directions issued by the Respondent (being The Owners - Strata Plan No. 53284) to the Applicant on or about 25 August 2018 to remove two security cameras which were affixed to the external wall of Unit 10 and certain pot plants on common property adjacent to Unit 10.

Background

This matter was also the subject of an application in the Tribunal for interim orders - SC 18/42521 - which was filed on 3 October 2018 in the Liverpool registry of the Tribunal. The application for interim relief was heard on an urgent basis in the Tribunal before the Deputy President on 12 October 2018 when the following orders were made: 1. The Owners Corporation is restrained from taking any action to remove or interfere with the two cameras installed by the Applicant pending the formal hearing; 2. The Applicant is to provide to the Strata Manager the information not yet provided and required by the Owners Corporation to consider the Applicant's request for retention of the cameras within 14 days; 3. The Owners Corporation is to call and conduct an Extraordinary General Meeting to consider the Applicant's request for permission to retain the cameras and put pot plants within 20 days of the provision of the information referred to in order 2; 4. Leave is given to Ms Freels to represent the Respondent.
The relief granted by the Deputy President was, of course, granted on an interlocutory basis - namely whether the Applicant could establish her case on a prima facie basis and whether the balance of convenience favoured the Applicant. The interim relief granted by the Deputy President on 16 October 2018 was designed to maintain the status quo pending the Tribunal being able to conduct a final hearing on the merits of the Applicant's claim. It did not purport to determine the dispute finally and on its merits.
That final hearing was listed before the Tribunal for a half day on 19 February 2019 at Sydney.
At that hearing, the Applicant, Ms Hanan Ghabour, who is the registered proprietor of Unit 10, 776-780 The Kingsway, Gymea, NSW, 2227, represented herself with an accompanying person, Mrs Mary Edwards. The Respondent was represented by its Strata Manager, Ms Branis Rolj of All Suburbs Strata Management.
The Applicant relied upon her own affidavit sworn 21 January 2019 which attached 27 exhibits, together with a History (3 pages), a Summary of the Applicant's Case (3 pages). The Respondent relied upon an indexed folder of approximately 102 pages which was predominantly documents including by-laws, notices, minutes and emails of relevant events. The Respondent's evidence was supplemented by the oral evidence of Mr Patrick Shanahan of Unit 11 SP 53284 which is adjacent to the Applicant's unit.

Chronology of Events

There was little dispute between the parties as to the factual events surrounding this dispute. The divergence arose in respect of the implication of those events.
SP 53284 is a residential strata building of approximately 15 mostly 2 bedroom units at 776-780, The Kingsway, Gymea, NSW, 2227. It was built in about 1996.
The Applicant gave evidence that she had rented the unit from February 2000 until June 2009 when she purchased it and continued to live in it. She moved out of the unit in February 2012 in order to rent the unit until June 2018, when she moved back in.
The unit is a ground floor strata unit in SP 53284. It is situated on the north east corner of the strata scheme and approximately 60cms above ground level. There appears to be car parking on a subterranean level below. There is no dividing fence between The Kingsway, a busy secondary road, and the strata scheme which means that strangers and passers-by have direct access onto the common property of the strata scheme from The Kingsway. It is this concern which, by her actions, the Applicant has sought to address.
Unfortunately, there is a history of disputation within SP 53284. The Applicant says there was a discussion at the AGM of SP 53284 in 2010 that the executive committee would look into the planting of shrubs on the border of the property to secure the area but no action has apparently been taken in the intervening 9 years. The grounds remain open to the public to walk around and through, including up to the windows of the Applicant's ground floor strata unit.
The Applicant currently has an Interim Personal Violence Order against the occupier of Unit 14 in SP53284 which returned to the Local Court on 25 January 2019.
The Applicant also claims she has been the subject of verbal abuse from the owner/occupier of Unit 12 in respect of whom there have been previous applications in the Tribunal relating to the watering of plants which drips onto the Applicant's balcony.
The Applicant was also in dispute with the owner/occupier of Unit 11 who installed fencing around the ground floor of his unit and which was moved to be directly in front of the Applicant's main bedroom window. After a further application to the Tribunal, a mediation agreement was reached between the two parties.
As the Applicant eloquently says in her affidavit at paragraph 8: "Therefore, there is a history of disputes, animosity, threats, verbal abuse, physical threats, targeting, spying, peeping into my unit main bedroom window, second bedroom window, kitchen, lounge room, threats towards my dogs, poisoning of my plants as well as ongoing inappropriate behaviour from various owner/occupiers who are and have been members of the executive committee".
On 29 June 2018 the Applicant wrote to the Strata Manager advising that her tenant was vacating the unit, that she would be doing minor renovations inside the unit and that her two dogs and her would be returning to the unit. She also advised the Strata Manager that she intended to install security cameras.
The Applicant states that she had a telephone conversation thereafter with Branis Rolj, the Strata Manager, and was told "there should not be a problem" for the security cameras.
Two security cameras outside the main bedroom of the unit and the kitchen of the unit were installed by the Applicant's contractor on or about 28 July 2018 at a cost of approximately $1,600. The cameras, according to the specification sheet at Exhibit 8 of the Applicant's affidavit, are HikVision cameras with no audio recording capability. The camera outside the kitchen window is a Vary Focal camera which means that it can zoom in and out. The camera outside the bedroom window is a fixed lens camera without the capability of zooming in or out. Both cameras require the cover to be taken off to move the lens around and, as currently installed, are directed at the ground area of the common property directly outside the Applicant's unit. According to the Applicant, there is no audio recording and the cameras are motion-activated i.e. they require motion to be triggered and then record for a limited period of time only.
On Monday, 30 July 2018 the Applicant received a telephone call from the Strata Manager stating that "the owners are not happy that the cameras were installed".
On 8 August 2018 at an Extraordinary General Meeting (EGM) of SP53284 occurred. The issue of the two cameras and of the Applicant's pot plants being placed on common property was raised informally. Neither party included any minutes of that meeting which referred to this issue. The Respondent claims however that the Applicant agreed to remove both the security cameras and pot plants that she had installed or placed on common property since her return.
On 13 August 2018 the Strata Manager advised the Applicant by email (R95) of the following matters: 1. "You will have to have permission from the Owners Corporation prior to attaching cameras to common property walls. 2. A by-law will have to be registered, making you responsible for the maintenance of the Security Cameras. 3. You are and will be responsible for all costs associated with the installation and maintenance of the Security Cameras. 4. You will have to provide a diagram where the cameras are to be placed so that the Owners Corporation can approve."
The Respondent claims that the Applicant failed to do this or comply with this email request and followed up with the Applicant by email dated 6 September 2018 (R96). The Applicant replied that she was obtaining legal advice (R96).
On or about 14 September 2018 the Respondent served two Notices to Comply with a by-law on the Applicant, one in respect by-law 3 to remove pot plants on the common property and one in respect of by-law 5 to remove the security cameras from the common property. These notices are Exhibit 12 to the Applicant's affidavit pp 45-52 and R97-100 of the Respondent's bundle.
On 25 September 2018 the Applicant with the assistance of Mr Justin Abi-Baher of Marrickville Legal Centre responded to the Strata Manager requesting that the Respondent grant a stay in relation to the Notices issued to Comply with the by-laws and a stay on the removal of the security cameras and pot plants which had been agreed at the EGM on 8 August 2018, until such time as negotiations between the Applicant and the Respondent can be resolved in good faith and without the need to commence legal action.
On 25 September 2018 the Strata Manager referred to the Notices to Comply and stated that she expected the Applicant to remove the illegally installed cameras and pot plants from common areas. The deadline for this was Friday, 5 October 2018 after which the Respondent would have "no other option than to hire a tradesperson to attend and remove what is attached to the common property. The cleaner will also be instructed to remove all stored items (pot plants) from common property on his next visit" (R54).
As a result of this demand the Applicant commenced this application in the Tribunal on or about 2 October 2018, including for interim orders.
After the Tribunal made interim orders, there was an EGM conducted at SP 53284 on 16 November 2018 at which the Applicant sought: 1. A new by-law pursuant to s.141 of the SSMA to provide the Respondent's approval for her to install and maintain the security cameras; and 2. Exclusive use of a tiled balcony outside her kitchen on which to put her pot pants.
The Applicant included a detailed draft of the proposed special by-laws and the basis of her request for approval, which referred to security for the entire building and the previous failures to install plants or fencing in the north-east corner of the common property (R17-28).
The proposed by-laws and resolutions were not passed at the EGM. The Applicant, who regards that rejection of consent by the other unitholders as unreasonable, has brought her concerns to the Tribunal.
The Applicant gave evidence that the EGM did not properly consider her request, and that it was pre-determined and that the EGM was over in 10 minutes.

By-laws of SP 53284

By-law 3 of SP 53284 states: "An owner or occupier of a lot must not obstruct lawful use of common property by any person".
By-law 5 of SP 53284 states: 1. "An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the Owners Corporation. 2. An approval given by the Owners Corporation under clause (1) cannot authorise any additions to the common property."

Surveillance Devices Act 2007 (NSW)

The Surveillance Devices Act 2007 (NSW) was introduced into the NSW Parliament for the purpose of regulating the installation, use, maintenance and retrieval of surveillance devices, to create offences relating to the improper installation or use of surveillance devices and to impose requirements for the secure storage and destruction of records in connection with surveillance device operations.
Section 8 of the Surveillance Devices Act states: 1. "A person must not knowingly install, use or maintain an optical surveillance device on or within premises … to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves: 1. entry onto or into the premises … without the express or implied consent of the owner or occupier of the premises …"
Breach of s. 8(1) of the Surveillance Devices Act created a regulatory offence punishable by 100 penalty units or 5 years imprisonment in the case of a non-corporate defendant.
An optical surveillance device is defined as: "Optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment."
As the Respondent is the owner of the land which the Applicant seeks to record visually, and as entry onto that land without consent was required by the Applicant to affix the two security cameras to the common property wall of the Respondent without its consent, it appears probable to the Tribunal that the two security cameras which the Applicant has installed on the common property external walls of SP 53284 are "optical surveillance devices" for the purposes of the Surveillance Devices Act; and that the Applicant has breached the Surveillance Devices Act.

Consideration

At the hearing of this application in the Tribunal, a number of unit holders of SP53284 attended. Although they were by no means a majority in number, their view by majority was against the security cameras installed by the Applicant on the grounds of privacy, lack of consent and breach of the by-laws.
In her defence, the Applicant said that the security cameras were installed for her own security, that passers-by had approached her window and that these security cameras - properly focused on the common property outside her unit - provided peace of mind to her. She gave evidence and submitted photographs that the focus of the cameras was on the external grounds outside her unit and not on her neighbour's unit. However she conceded that the focus of each camera could be physically changed
It is unfortunate that the Applicant did not seek approval in advance at an EGM of the Respondent to install the security cameras and for by-laws (if appropriate) to be passed for the maintenance of the cameras before she returned to live in the unit. Instead, the Applicant went ahead and installed the security cameras on the common property in two positions which could maintain surveillance of the common property outside her own unit.
An EGM of the Respondent was held on 16 November 2018 (after interim orders in the Tribunal had been granted) in which the minutes of the meeting recorded the draft resolutions which were defeated.
The voting in respect of this by-law suggested that all of the total unit entitlement present and entitled to vote (75.00) unanimously voted against this resolution, and therefore the resolution was not passed. The Applicant needed a special resolution of the EGM which is 75% in favour.
This meeting also resolved not to make an additional by-law that the owner at the time being of lot 10 "shall have the privilege to use the tiled area being 2.9 m x 73 cm adjacent to the balcony of lot 10 in front of the kitchen window of the said lot for the purpose of locating pot plants". Again, the votes cast were in the same margin as for the previous resolution.
The Applicant in her affidavit at paragraph 23 states that "not all the supporting information was given to all owners", the meeting was over in 10 minutes and that all of the members who attended declined to consider the Applicant's request in detail but simply voted and left. This last assertion is probably correct - the EGM commenced at 5.30pm and closed at 5.40pm (R22).
It is clear that the Applicant is unable to cultivate any support within the strata scheme for the resolutions that were proposed at the meeting on 16 November 2018. In fairness, the Applicant has not assisted her cause in the manner in which she has gone about the installation of security cameras and pot plants outside her unit. She failed to seek approval for the cameras and pot plants at an EGM in advance of the installation.
The Tribunal asked the Applicant where the data which recorded the surveillance activity was kept and accessed. The Applicant informed the Tribunal that she had purchased a hard drive on which the data would be stored for an indeterminate amount of time and that it could be accessed by Wi-Fi and through her laptop.
In operating in this manner, the Applicant appears to the Tribunal to be in breach of by-law 5 of the by-laws of SP53284 and also in breach of s. 8(1) of the Surveillance Devices Act. The Applicant has given little consideration to the storage and maintenance of the digital data which she will accumulate as a result of the operation of the surveillance cameras, how it impacts upon other unit holders and their privacy if they use that area of common property and why in this instance, security cameras are the only answer to her security concerns. There are cyber security, data breach and privacy principles applicable to the collection of data in the form in which the Applicant intends, none of which appear to have been given any or sufficient consideration by the Applicant.
Nor is there any reason to suggest why other security devices which the Respondent may more readily agree to such as outside lights with motion sensors should not be utilised. The Tribunal has considered the relevant case law precedent in Lai v Community Association DP270214 [2016] NSW CAT CD 58, where an Applicant installed security cameras on the exterior of their lot without the permission of the Community Association and was ordered to remove the security cameras and return the common property to its original condition, colour and state on appeal from a strata adjudication to the Tribunal. In that case the security cameras had been in place for 7 years before any complaint was made yet the Tribunal had no hesitation in applying the existing by-law and ordering removal of the security cameras.
This authority seems closer on its facts and issues to the present circumstances than the authorities suggested by the Applicant in her submission, namely Gurram v Owners Corporation SP36589 [2018] NSW CAT CD 39 (which related to wooden flooring), Yardy v Owners Corporation SP57237 [2018] NSW CAT CD 19 (which related to pet ownership) and The Owners - Strata Plan 30198 v Barnes [2018] NSW CAT CD 8 (which related to a garden area).
The Respondent in its bundle of documents also included an order of the Consumer, Trader and Tenancy Tribunal (CTTT) dated 12 August 2011 which ordered: '5. The applicant (The Owners - SP 53284) shall forthwith remove from the common property area outside lots 2, 3 and 10 any pots that are her property and shall comply with by-law 4 by not using the area for her own purposes as a garden.
It is apparent from the evidence given by the Applicant at paragraph 9 above that she was the owner/occupier of Lot 10/Unit 10 at this time. So this precise issue at least in respect of pot plants has been before the Tribunal (or its predecessor) previously and has been resolved against the Applicant and appropriate orders made.

Conclusion

After due consideration of all these matters, the Tribunal considers that the application should be dismissed. It follows therefore that the interim orders made by the Deputy President on 16 October 2018 - to the extent that they need to be - should be vacated. The Applicant, in the absence of being able to pass a special by-law or obtain an order of the Tribunal to justify her actions or obviate the need for the Respondent's consent, must comply with the existing by-laws in respect of both the security cameras and the pot plants.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2019

Ghabour v The Owners - Strata Plan No. 53284

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