1. The applicant is one of the two registered owners of a unit (Unit 1) in a unit titled complex (the complex) owned by the respondent corporation (the corporation). There are four other units in the complex.
2. Pursuant to an ordinary resolution of the corporation carried at the 2017 AGM, all the members of the corporation are also members of the executive committee of the corporation for the purposes of Division 4.1 of the UTM Act. As at 9 March 2018, no office holders had been elected under section 40 of the UTM Act.
3. The respondent is entitled under clause 3.15 of schedule 3 of the UTM Act to pass an ordinary resolution at a general meeting. Under this clause, an ordinary resolution is approved if:
   • (a) On an ordinary vote, the number of votes in favour of it are greater than the number of votes passed against it; or
   • (b) if the poll is taken, if the voting value of the votes cast in favour of the resolution is greater than the voting value of the votes cast against it.
4. Mr Rampala and his wife jointly hold 1 vote out of 5, or 20.3% of the voting rights of the corporation on a poll.

1. At the 2017 AGM. The owners of three units were present in person and the owners of two other units were present by proxy. At this AGM the corporation passed motions 2 and motion 7 by ordinary resolution, on a poll. Motion 7(i) failed.

1. The applicant represented himself through the Tribunal process. The respondent was represented by a lawyer, Ms Wilde.
2. Mr Rampala lodged his application for review on 30 October 2017. A directions hearings was held on 29 November 2017. At that directions hearing the parties declined to participate in a conference, and hence the matter was set down for hearing on 16 February 2018. Directions were made for the filing of documents.
3. At the hearing on 16 February 2018 Mr Rampala gave oral evidence and was cross examined. He relied upon an extensive amount of documentation filed prior to hearing and some additional material provided to the Tribunal during the course of the hearing.[1] He did not call any other witnesses.
4. During the hearing, Mr Rampala purported to be representing the views of the owner of Unit 5, as well as his own. In support of this contention, he sought to rely upon an email from the owner of Unit 5 which, he said, demonstrated that that owner was also "very unhappy" with the manager[2], amongst other things. I accept that the email shows that the owner of Unit 5 had some concerns about the manager's performance, and I accept that their proxy vote was exercised by Mr Rampala, which demonstrates confidence in his position. However, I cannot draw any conclusions beyond these.
5. Ms Wilde called two witnesses on behalf of the respondent, Mrs Lockwood and Mr Hetherington. Both are long term residents of the complex who attended the 2017 AGM and voted in favour of motions 2 and motion 7 and against motion 7(i). Both gave evidence at the hearing and were cross examined by the applicant. Their evidence is set out below. Ms Wilde also relied upon filed documentation and submissions. Ms Wilde advised the Tribunal that a third owner was also available to give evidence, 'if necessary', but as this witness was moving house on the day of the hearing, attendance at the hearing would be inconvenient. With the agreement of the parties, I was prepared to accept that that this owner knew about the alternative motion 7(i), and why Mr Rampala was pressing for it, but still chose to vote for motions 2 and 7 and against motion 7(i). Again, however, I can make no findings as to her reasons.

1. Sections 129(1)(f) and 129(1)(g) of the UTM Act provide:
   1. Kinds of ACAT orders

(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;

(g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;

1. The legal framework for a merits review under section 129(1)(f) was set out by Presidential Member Daniel in Brudenall & Ors v Owners Corporation Units Plan No. 202[3] (Brudenall):
   1. Section 129(1)(f) of the Unit Titles (Management) Act 2011 (UTM Act) provides that the tribunal may make:

(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;

1. In previous matters involving the UTM Act, the tribunal has outlined what merits review in this context involves. The approach is often summarised as requiring the tribunal to stand in the shoes of the decision maker and make the correct or preferable decision. In this case, the decision-maker is the owners corporation and the Tribunal after conducting merits review is empowered to repeal or amend Motion 5.
2. There are a number of features of merits review which are worth noting.
3. First, the review is essentially de novo, that is, the tribunal is able to consider issues of both fact and law anew. The tribunal does not simply review the reasons for decision or the process followed by the original decision-maker. Secondly, the tribunal considers and determines the issues as at the date of the hearing, not as at the time of the original decision, and is usually able to have regard to the most up to date information.
4. The concept of the 'correct or preferable decision' is significant. The term recognises that in the exercise of a discretionary power there may be more than one possible decision which is correct at law, and the task for the decision-maker in such a case is to decide which of the available decisions is to be preferred.
5. When conducting merits review the tribunal is not obliged to choose either the position adopted by the applicant, or that of respondent. Instead, subject to ensuring that the requirements of natural justice are met in the hearing process, the tribunal is required to make the correct or preferable decision on the merits of the case. In some rare cases, this may involve the tribunal making a decision which was not advocated for by any party.
6. I accept and adopt this approach. It requires the tribunal to stand in the shoes of the decision maker and make the correct or preferable decision. In this case, the decision-maker is the corporation, and the Tribunal, after conducting merits review under section 129(f) is empowered to repeal or amend motions 2 or 7.[4]
7. Section 129(g), which would apply on a review of motion 7(i), has the additional requirement that the objections to the unsuccessful motion must be "unreasonable". A summary of the principles surrounding this provision may be found in Uren & Anor v the Owners - Unit Plan No 396 [2017] ACAT 51 at [14] to [17]. For reasons that will be apparent shortly, I do not need to consider the operation of this provision in any depth.

1. In brief, motion 7 sought the re-appointment of Independent Strata Management (Independent) as the 'manager' of the corporation for the purposes of Division 4.2 of Part 4 of the UTM Act for a further period of four years and set out, and sought authority for, the steps necessary to implement that arrangement. Motion 7(i) sought the appointment of an alternative manager.
2. As presented, motion 7(i) does not appoint an alternative company. However, Mr Rampala had acquired from another company (the alternative manager) a quote, draft contract and a commitment to the Code of Conduct and Rules of Conduct stated in the motion. While not filed with the tribunal, I understand they were made available to the other members of the corporation at the AGM.

The applicant's case in relation to motions 7 and 7(i)

1. Mr Rampala's case was, effectively, that Independent had performed poorly in its role as manager over several years, and that the alternative manager could provide a better standard of service, for a lower cost.
2. Mr Rampala's allegations of 'poor performance' were based on several incidents that had occurred over the preceding years. For the most part, it was the seriousness of these incidents, rather than their occurrence, that was in dispute. It is important to note that no representative of Independent was present at the hearing, and Ms Wilde made it clear that she represented the owners corporation and was "not here [at the hearing] to defend the manager"[5]. As such, Independent was not given an opportunity to answer the allegations, and it may well be that there are explanations for the incidents which are not before the Tribunal. Still, for the purposes of this review, I will accept the evidence of the parties as to the occurrence of them.
3. The first incident of poor performance was an error in the respondent's 2015 tax return. An officer engaged by the Independent had relied upon an earlier year's figures, and the respondent initially paid too much tax as a result. Mr Rampala noticed that the tax bill for 2015 was significantly higher than previous years, and he raised it with Independent. His inquiries did not get him very far initially, and indeed it appears he was denied access to certain documentation he sought to review. Nonetheless, through diligent review and analysis, and the apparent reconstruction of some records, he identified the error and notified Independent. It appears to have taken Independent's staff some time to respond, but eventually they accepted that a mistake had been made. The tax return was remedied and the corporation was refunded for the excess tax paid.
4. The second incident of poor performance was the excessively lengthy amount of time it took to arrange the repair of a fence on the border of the complex. The fence started leaning in January 2016. It had evidentially not been fixed by the 2016 AGM, held in October 2016, when it was 'noted' in the minutes that the "managing agent will obtain quotes for the replacement of the front fence...". A motion requiring urgent replacement of the fence, proposed by Mr Rampala at that AGM, failed to pass. The fence was eventually replaced in February 2017. Mr Rampala contended that the fence presented an occupational health and safety risk and that work to remedy the fence should have been undertaken at the earliest possible time, not after months of queries and the passage of a motion at the AGM. Ms Wilde said that the respondent did not agree that repairs were that urgent, but conceded that the corporation agreed that the process took too long. Part of the delay was explained as a problem getting consent from a neighbour.
5. The third alleged incident was that Independent failed to consult with the owners regarding insurance policy renewals in 2015 and 2017.
6. It was agreed that there was a failure to consult in 2017. Independent conceded in an email to the owners that:

Unfortunately the insurance has been renewed despite there being a requirement by the Owners Corporation to be provided quotes for the renewal. I am investigating why this occurred.[6]

1. Mr Rampala said he had not seen any investigation report.[7]
2. The parties disagreed about whether consultation had taken place in 2015. A review of the minutes from 2015 and 2016 indicates that insurance is an annual issue for the complex, but I accept Mr Rampala's evidence that the consultation process may not have been as thorough as he would have liked.
3. The fourth incident involved arrangements for the removal of a dangerous tree from the common property outside Mr Rampala's unit. Mr Rampala explained to the Tribunal that Independent's preference had been pruning of the tree, which was dangerous and inappropriate in the circumstances. He alleged that Independent's contractors were overpriced and inappropriate. His evidence was that he had sourced a quote for the removal of the tree that was significantly less than that suggested by Independent's contractor for merely the pruning of it. The tree has since been removed, which I accept probably demonstrates that removal was the correct course of action.
4. The final incidents relied upon were inaccuracies in the minutes for the 2012, 2013 and 2014 AGMs. The minutes had to be corrected.
5. Mr Rampala contended that this sequence of incidents was indicative of a pattern of 'deliberate', unlawful', 'misleading and deceptive' conduct and 'systemic wrong doings' by Independent. However, notwithstanding that the evidence demonstrates a number of irregularities in the management of the respondent by the Independent, there was no evidence of the motivations contended by the applicant.
6. Mr Rampala's evidence was that he had consulted another[8] management company and acquired a draft contract and a quote. The quote was close to 25% a year less than being charged by Independent and the term was for only one year rather than the three required by Independent. The alternative management company also had a statement of ethical conduct and a fraud prevention plan.[9] The applicant said that he had negotiated the offer over the course of six months, and was very pleased to present it to the owners at the AGM. Notwithstanding his efforts, however, the corporation members determined to continue with Independent.
7. The majority's decision to reinstate Independent obviously caused Mr Rampala considerable disappointment and distress. In his submissions, he made various assertions about the possible motivations of the other unit holders. There was no evidence to support these contentions, and other than as noted below, I have given them no weight.
8. In summary, therefore, the applicant's position was:
   • (a) Independent had made numerous errors and he had lost trust and confidence in them;
   • (b) another management company was prepared to do the same work for less cost;
   • (c) the other company has made an express and explicit commitment to codes of practice and ethical conduct; and
   • (d) Independent demanded a three year contract, while the alternative company only required a one year commitment, so it would be possible to change again if things did not work out.

The corporation's evidence in relation to motions 7 and 7(i)

1. The corporation's interests were presented through two witnesses, Mrs Lockwood and Mr Hetherington, both of whom had voted in favour of motion 7 and against motion 7(i).
2. Mrs Lockwood had lived in the complex for 17 years. Mrs Lockwood was 'pretty sure' she'd been to all the annual general meetings, at least since 2009. Independent had managed the complex for all that the time that she had lived in it, and she was generally happy with their performance.
3. Mrs Lockwood confirmed that she knew about the applicant's allegations about Independent, including in relation to the inaccurate tax return, the fence and the tree. She acknowledged these were problematic events, but did not consider them reason to change the manager. She was also aware there was one occasion where Independent renewed the insurance without consultation, but ultimately the insurance was paid, which was her major concern.[10] She was unconcerned about the errors in the minutes stating that "... we tend to fix it on the day of the [next] AGM."[11]
4. Mrs Lockwood spoke highly of an Independent employee who had managed the property for some time, a Ms Shaw. She conceded that she had held some concerns about the performance an individual engaged by Independent to replace Ms Shaw in 2017, but said that person has since moved on and she was confident those issues had been resolved. She was happy with the person currently undertaking the management of the complex on behalf of Independent. She was reassured by the fact that Ms Shaw was still, at the time of the hearing, with Independent, albeit in a different role.
5. When questioned as to why she chose to remain with Independent, despite the incidents complained of by Mr Rampala, Mrs Lockwood said:

I think that no matter what organisation you're with or what strata manager you are with there would always be some minor issues but, in general, I've been happy with Independent. Some years they've been better than others, depending on the managers we've had, but, in general, I'm more than happy with them and I think the amount they charge us is reasonable...and that's why I voted for them[12]

1. The respondent's second witness was Mr Hetherington. He was also the owner of a unit, which he had lived in for 23 years. He confirmed that Independent had been the manager of the complex for the entire time he had owned his unit.
2. Mr Hetherington's evidence was similar to Mrs Lockwood's. He was aware of the error in the tax return and the problems with the tree. He agreed that the replacement of the fence had been delayed, although he did not necessarily agree the fence presented an immediate or serious problem. He said that some of the delay in the fence was because of difficulties reaching agreement with neighbours. He acknowledged there were errors in minutes but said they had been corrected.
3. In relation to the insurance renewals, Mr Hetherington agreed that consultation had not taken place, as required, in 2017, but said it had been done in other years. He referred to emails confirming this, but copies of those emails were not before the Tribunal.
4. Similarly to Mrs Lockwood, Mr Hetherington agreed that some of the conduct of one of Independent's staff members, engaged during 2017, was less than satisfactory. He acknowledged that a number of things slipped during that time. However, he had generally been happy with the service prior to that, and he was happy with the current employee assigned to the complex. He observed that:

Well, basically, I've been there so long. They've [Independent] had many managers and mistakes are going to happen; mistake or miscalculation and so forth. That is, I think, normal of any organisation I've been with ...[13]

1. Under cross examination, Mr Hetherington conceded that there was some personal animosity between himself and Mr Rampala, and that on at least one occasion, in 2014, it was Mr Rampala's conduct and attitude toward Independent, and his fear of Mr Rampala "taking over", that led him reengage Independent, despite concerns about its performance at that time. However, he clarified that he has grown happier with Independent since then.[14]
2. Mr Hetherington was still, however, influenced to some degree by concerns about the consequences of Mr Rampala's conduct. He observed that Mr Rampala generated a lot of correspondence, and said that responding to this placed an onerous burden on the manager. Mr Hetherington was worried that a new manager (especially one only engaged for a year) may wish to discontinue services to the complex after only one year. He cited the amount of correspondence initiated by the applicant, and the resources it must take to answer those queries, as a reason why the manager may resign. Indeed, he said he was "....surprised that Independent hasn't kicked us out."[15]
3. When asked about this possibility, Mr Rampala initially said the suggestion was 'speculative' and declined to answer, but then insisted that answering correspondence of the kind he wrote was part of the general duties of a manager. He did not accept that it would make managing the complex more complicated.
4. Mr Hetherington acknowledged that he had been unaware of the need to have office holders on the executive committee. He was not concerned by this and did not see it as a failing on Independent's part. He noted that it would be hard to get people to perform these roles, and that he was happy to delegate all authority to Independent, in whom he had trust.
5. In summary, therefore, Mrs Lockwood and Mr Hetherington had similar reasons for voting for Independent, which may be summarised as follows:
   • (a) Independent had a long history with the complex, and within the greater scheme of that history, a small number of errors and a short period of less than satisfactory performance was not a great concern to them;
   • (b) Independent gave good value for money, particularly when considered in the volume of correspondence the manager had to address;
   • (c) they had confidence that the relationship would continue into the future; and
   • (d) they thought highly of one of the senior personnel at Independent, and of their current manager.

1. As per the reasoning in Brudenell, at paragraph [18] above, the Tribunal may approve motion 7, or repeal it, or amend it - although any amendment made to the motion should not alter the nature of it, having regard to the scope of the motion as notified to members prior to the AGM.[16] In considering which option to take, the Tribunal is entitled to rely upon the information presently before it, and is not confined to the information before the members of the AGM.
2. In the circumstances, it would be open to the Tribunal to:
   • (a) confirm motion 7, appointing Independent as a manager for three years, with the associated powers and responsibilities, either on the terms suggested by motion 7 or perhaps on amended terms that are within the scope of the motion; and/or
   • (b) decline to appoint Independent as a manager.
3. A further alternative available to the Tribunal would be to amend or repeal motion 7, and give effect to motion 7(i), appointing an alternative entity that meets certain criteria, although this possibly would require both an order under 129(1)(f) and 129(1)(g). However, motion 7(i) does not specify the alternative entity, requiring only the appointment of "a more competitive strata manager who is capable of delivering its strata services in accordance with the Code of Conduct of the UTMA 2011 and the Rules of Conduct of the Agents Act 2003."
4. It might be legally open to the Tribunal to appoint the alternative manager suggested by Mr Rampala. Certainly, Mr Rampala gave evidence that he had a draft contract and a quote from the alternative manager, and detailed the discussions he had had with that company. However, while I accept this evidence as far as it goes, it does not go very far, and I cannot be satisfied that the negotiations are so advanced that I should or could order the appointment of that particular alternative manager. I do not, in any case, need to actually appoint an alternative manager. Even were I to give effect to motion 7(i), on its words, it would still be open to the corporation to choose a different, third company that complied with the terms of the motion, although this would require that the parties hold another general meeting.
5. Neither party suggested that a manager would be unnecessary. Neither party suggested any alternative terms upon which a manager could be appointed, other than those set out in motion 7. The applicant's alternative motion 7(ii) indeed sets out no terms for the alternative appointment. At hearing, the applicant expressed concerns about a three year, as opposed to one year, contract, and this is a factor that I have taken into account in the broader merits review. Presumably, if the Tribunal revoked motion 7 and gave effect to motion 7(ii), it would be a matter for the parties to negotiate the terms of any engagement with the new manager.
6. So, assuming that some order needs to be made in relation to the appointment of a manager, what is the correct and preferable decision to make?
7. Taking first the concept of 'correct', a correct decision is one that is rightly decided, based on correct conclusions of fact and law, decided properly and according to due process, and free from illegality or abuse of process.[17]
8. There may be many 'correct' outcomes to a given situation. There was nothing evidentially 'incorrect' about the decision to reappoint Independent. There would not have been anything 'incorrect' about the alternative either. Both options were supported by rational reasons and neither raised any question of illegality. There was no suggestion that the AGM process was flawed. In short, both options were open to the corporation and neither was in any sense 'incorrect'.
9. The next question is: which of the options was the 'preferable' decision?
10. A given scenario may have many available outcomes, but choosing the 'preferable' decision requires the decision maker to choose one. This inevitably involves the application of relevant discretionary considerations.[18] These include the full circumstances of the case, the context in which the decision is made, and the framework imposed by the legislation.[19]
11. Having regard to framework established by the UTM Act, and the role of a manager within the framework of that Act, the 'preferable' decision in this case is one that will ensure the efficient and effective management of the complex and the protection and advancement of the interests of the owners corporation, as a whole, but having regard to the interests of each of the five unit holders within it.
12. One of the difficulties in this case is that, notwithstanding the voluminous documentation filed, the information before the Tribunal as to what the alternatives to Independent are is limited. I have little in the way of detail as to the relevant arrangements between the corporation and Independent. I have a little more information about a possible offer made by Mr Rampala's favoured alternative manager, but there is little clear evidence of a concrete offer. No witness from either Independent or the alternative manager was called to give evidence. No evidence was provided on any other management company operating in the ACT. The question of what extras the alternative manager would charge for was unanswerable. These circumstances make it difficult, if not impossible, to conduct any real review of the comparative benefits of Independent and the alternative manager, or any other manager.
13. Instead, what the Tribunal was effectively left with was Mr Rampala's list of reasons why Independent should not be reappointed. So, let me review those.
14. The applicant's reasons for pressing for a change in manager primarily come down to Independent's performance during the last couple of years of a commercial relationship that has existed for over two decades. Some of the incidents of poor performance appear to be attributable to the conduct of a single Independent employee, although others may be longer standing issues. That there have been problems was agreed between the parties, but while the respondent considers them relatively minor, Mr Rampala casts them in a more serious, and indeed sinister, light. I accept the position of the respondent that the periods of less than satisfactory performance need to be considered in the context of an otherwise lengthy and successful relationship. I do not accept that the incidents were anything other than oversights. I accept that they do not require the severing of the relationship between the respondent and Independent, although they would be reasons to choose to do so.
15. That is not to suggest that Mr Rampala's concerns about the performance of Independent were unfounded, or even unreasonable. Mr Rampala is clearly a man of high principle and exacting standards, and he holds service providers to those standards. I accept that Independent has not met the applicant's standards. It is reasonable that he wishes to trial another manager, and to see if it can meet his standards. However, I also accept that it is reasonable for the other members of the owners corporation to place less emphasis on the faults, or to choose to sacrifice absolute perfection for a good relationship, historical loyalties, certainty and a satisfactory price.
16. That leads me to the consideration of Mr Rampala's second reason for favouring an alternative company - that is, the cheaper cost. His evidence is that he engaged in extensive negotiations with the alternative company, and secured a reduction in the yearly fee of about 25% or $500 a year. This equates to around $100 a unit owner.
17. A saving of $100 a unit a year is not inconsiderable, especially as many of the residents, including the applicant, appear to be retired or on limited incomes. A saving of this magnitude may well be a reason to trial a different manager, but it will not necessarily be a decisive one. As Mrs Lockwood and Mr Hetherington made clear, while cost is one consideration, their relationship with the existing manager, and a desire for continuity of service, is another.
18. In any case, the cost reduction in this case may also be more potential than real. Mr Hetherington was concerned that an alternative manager, even if cheaper in the short term, might be more expensive in the long run due to the workload associated with this complex. He pointed to Mr Rampala's frequent correspondence to, and requests of, Independent as being the source of his concern. Mr Rampala is an involved unit owner, who asks many questions. Now, on one level, the other unit holders should be relieved or grateful to have such an active and detail oriented member of their community, who can keep an eye on the manager. Unfortunately, however, while Mr Rampala brings problems to the attention of relevant persons, the usual tone of the correspondence in which he does so is unnecessarily accusatory and discourteous. Independent has dealt with the Mr Rampala's correspondence within its standard fee for service, but it is entirely reasonable for Mr Hetherington to be concerned that a new manager, with a different cost structure, may not be so obliging.
19. Mr Rampala's third ground for the removal and/or replacement of Independent - albeit one that is not well articulated by him - is that the relationship between Independent and himself is so poor that the continued engagement of Independent by a majority amounts to oppression of the applicant by the respondent. While not expressly stated, the possibility of this kind of oppression did occur to me as I read through the documentation. Some of the comments made by Mr Hetherington, in particular, about the importance of majority opinion, and the contrary influence that the applicant had on him, caused me to become concerned that the actions of a majority of owners corporation may amount to 'oppression' on the minority.[20]
20. Mr Rampala is clearly deeply affected by way he sees to be the incompetence of the manager. Independent's handling of the applicant's enquiries has not always been prompt, and on at least one occasion the relevant manager, clearly exasperated, was somewhat unprofessional toward him. There is a prospect that starting again, with a new manager, may bring him peace of mind, and may also allow all residents to try to rebuild some semblance of normalcy. This is a strong factor for revoking the motion 7 and giving effect to motion 7(i).
21. The difficulty I have, however, is that I cannot, with any confidence, conclude that a change in the manager will result in a more hospitable environment for all residents of the complex. Mr Rampala, in the course of these proceedings, showed little insight into the effect that the tone of his correspondence has on the person reading it (particularly if they are the subject of it). This gives me no confidence that Mr Rampala would have any better a relationship with an alternative manager.
22. Indeed, I think there is a real risk that an alternative manager, a manager without the extensive history that Independent has had with the block, and charging only $1500 a year, may well decide, at the end of its one year tenure, not to continue. That is not a large risk, and again it is, as the applicant pointed out, entirely speculative. But in considering the future management of the unit corporation, it is appropriate and unavoidable that the residents undertake at least some speculation.
23. On balance, therefore, while I am concerned there is an imbalance of power within this corporation, and that the majority is in a position of power that could be used to oppress the minority (ie. Mr Rampala), I am not satisfied that the majority decision was an unreasonable, disproportionate or unfair exercise of that power.
24. There is a final factor in favour of the respondents in this case. Corporations are intended to be self-determining and democratic.[21] Presented with the two options, both of which are correct, both of which have some merit, and neither of which give rise to any undue interference with the individual rights of owners, it is entirely appropriate that the Tribunal give some weight to the clear majority position, which in this case is to continue the long standing relationship with Independent.
25. It will not always be appropriate to give preference to a majority opinion. In some cases, the majority opinion may be an incorrect one, in the sense of being contrary to the Act, or a breach of natural justice, in excess of power, or otherwise flawed. It may not be the preferable decision, having regard to all the facts and circumstances. It may be oppressive to a minority, disproportionate, or otherwise irrational or unfair. In such cases, the Tribunal has the power to review and either amend or replace the decision. But for reasons I have already discussed, I am not convinced any such concerns arise in this case.
26. I am satisfied that the decision to re-appoint Independent was the correct and preferable decision.

1. I am satisfied that the decision to re-appoint Independent was the correct and preferable decision. Accordingly, as I am not minded to interfere with that decision, there is little purpose to be served in considering the alternative, motion 7(i).
2. However, for the avoidance of doubt, I note that in order to give effect to motion 7(i), I would need to be satisfied both that the appointment of an alternative manager was the correct and preferable decision and that the opposition to the resolution from the majority of the owners was unreasonable.
3. For the reasons set out above, I am satisfied that the majority had reasonable and rational reasons for not wanting to change managers. Accordingly, the majority decision was not unreasonable and the test in section 129(1)(g) of the UTM Act for giving effect to failed motion 7(i) is not met.

1. As I understand it, Mr Rampala's argument was that motion 2 effectively removed the requirement that the manager undertake a consultation and review of the respondent's insurance on a yearly basis, and replaced it with an obligation to conduct a review only every three years. This was important because, he submitted, "every year you have to renew that contract with the insurer."[22] The correct or preferable decision, in Mr Rampala's view, would require the manager to obtain appropriate quotes and valuations every year, as this would ensure the most up to date insurance.
2. The respondent led little evidence on the purpose of motion 2 or what was sought to be achieved by it. However, the respondent's solicitor pointed out that there was no need to renew the insurance every year. Division 5.4 of the UTM Act, she submitted, requires that insurance be taken out and maintained, and that building insurance be updated to reflect the value of the insured property "from time to time".
3. My reading of this motion is that it is simply a formal authorisation for the manager to adjust the insurance in consultation with the executive committee, without the need for the formalities of another general meeting. I do not read the motion as having any effect on the statutory obligation of the corporation, or the manager as the delegate of the corporation, to ensure that insurances are obtained, maintained and kept up to date from time to time as required by the UTM Act.
4. The applicant appears to be worried that insurance policies may be renewed without consultation, or without quotes or valuations, or that it may not be renewed as regularly as it should be. His fears about the lack of consultation, at least, are not unjustified, in light of the oversight in 2017. Therefore, while I will dismiss the application for review, on the basis that I do not think repeal of the motion is the preferable decision, I will add the following notation to the order:

For the avoidance of doubt, the owners corporation must ensure that necessary insurance policies are adjusted from time to time and the Executive Committee (or its delegate) is to ensure that building insurance is considered at each annual general meeting as required by clause 2.3 of Part 2.1 of Schedule 2 of the UTM Act so that members may be satisfied that appropriate insurance arrangements are in place.

1. While this merely repeats legislative requirements, it perhaps assists the applicant by making it clear that insurance may only be reviewed in consultation with the executive committee - which includes all owners, including him.

1. Following the delivery of the decision on 9 March 2018, the respondent made an application for an order that Mr Rampala pay its costs under section 48 of the ACAT Act. I advised the parties I would deliver my decision on the costs application when I published reasons on the substantive matter. I do that now.
2. The respondent's claim for costs was narrow - it sought 'costs thrown away' in preparing responses to a number of matters that were raised by Mr Rampala in various documents prior to the hearing, but were then abandoned at the hearing. In particular, it drew attention to correspondence sent by Ms Wilde to Mr Rampala on 12 February 2018, setting out the basis upon which she believed the majority of his contentions were untenable and beyond the jurisdiction of the Tribunal in this proceeding. Although sent only three days before the hearing, the letter in substance repeated the respondent's response filed earlier in proceedings, and its contents would not have come as a complete surprise to Mr Rampala.
3. At the commencement of the hearing, Mr Rampala conceded that the assertions in Ms Wilde's letter in relation to jurisdiction were correct. He withdrew many (indeed, the majority) of his claims. The respondent's solicitor had spent time preparing to address issues that were not heard.
4. When questioned about why he did not conceded these points earlier, Mr Rampala told the Tribunal that he could not respond to Ms Wilde's letter prior to the hearing because he did not have email access until the day before the hearing. He withdrew the untenable grounds at his first opportunity on the morning of the hearing.
5. The default and expected position in the Tribunal is that parties will bear their own costs'.[23] There are sound policy reasons for this. The Tribunal is intended to be simple, inexpensive[24] and informal[25], and procedural rules are flexible enough to allow parties to represent themselves. A limitation on the awarding of costs is intended to make justice more accessible[26] by limiting the risk of being required to pay for another party's legal representative.
6. That limitation is not unconditional. Section 48(2) of the ACAT Act permits the Tribunal to award costs in certain, limited circumstances. The section is as follows:
   1. Costs of proceedings

(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.

(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--

(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or

(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or

(c) subject to section 49, if a party to the application contravenes an order of the tribunal - the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or

(d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications) - the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.

1. The Supreme Court has held that this section confers only a narrow costs power on the Tribunal, being the power to make only the orders specified in section 48(2) and only in the circumstances specified in that provision.[27] The only ground in 48(2) that is relevant to the current application is found in paragraph (b), which provides that costs may be awarded when a party to an application as caused "unreasonable delay or obstruction". It is upon this provision that the respondent relied.
2. What is an 'unreasonable delay or obstruction'?
3. In Barker v Plunkett & Anor trading as M & J Plunkett Builders [2018] ACAT 9 at [33], in the context of a civil claim, Registrar Soper considered the meaning of 'unreasonable delay or obstruction' as follows:

When looking at this provision, the ordinary meaning of 'delay' and 'obstructs' is to be used. Delay is relevantly defined as: "make (someone or something) late or slow" and "postpone or defer an action". Delay must be unreasonable and "can be minor or occur unintentionally and/or unavoidably." 'Obstructs' is relevantly defined as "prevent or hinder (something or someone in motion)" and "deliberately make (something) difficult.

1. Barker involved an application by a self-represented applicant to set aside consent orders. The application was dismissed. The respondent sought costs, submitting that the proceedings exceeded the value of the claim, but the Registrar opined that "it does not follow that costs can or should be awarded against the applicant solely on that basis, even when the application to restore was not successful".[28] There must be something about the application that itself occasions delay or obstruction; disproportionate costs alone are not enough.
2. In Smyth v J&C Whyte Family Trust & Anor (2016) ACAT 132 (Smyth), Presidential Member McCarthy described the application of section 48 as follows (albeit, again, in the context of a civil claim):

126. Especially relevant to claims for small monetary amounts, sections 48(2)(b) and (c) state circumstances in which the tribunal may depart from the general rule. When sections 6(b) and (c) and 48(2)(b) and (c) are read together, it becomes clear that each party is expected to participate in tribunal proceedings in a manner that promotes the objects in sections 6(b) and (c) - and may be ordered to pay another party's costs if it does not do so.

127. Litigation in the tribunal's small claims jurisdiction is not about sharp practice, withholding relevant information, half-truths, ambush, surprise or delay - in short "unreasonable delay or obstruction." It is about each party bringing the dispute to the table as quickly as practicable with all of the relevant facts, evidence and arguments laid bare so that the dispute can be resolved as quickly and as inexpensively as the case permits. In my view, the tribunal's power to order costs under section 48(2)(b) is engaged when a party does not participate in this way.

The tribunal routinely orders that parties give the tribunal and the other parties, in advance of the hearing, a witness statement setting out the intended evidence of any witness they intend to call, a copy of any document they intend to rely on and an outline of their case. These orders are sometimes criticised as onerous. I disagree.

128. The intention is to oblige the parties to prepare and disclose their cases in advance of the hearing, to avoid surprise and to enable the dispute to be resolved quickly and fairly.

129. In my view, the tribunal's powers to order costs under section 48(2)(c) is engaged when a party does not participate as ordered, especially where the party's non-compliance with an order defeats the tribunal's ability to deal with the dispute efficiently and quickly and/or increases the time and/or costs of other parties.

1. In other words, it is the conduct and behaviour of the parties that is the relevant consideration. Parties are expected to comply with directions, do their best to get the matter ready for hearing in an efficient manner, and refrain from 'sharp practices' that lead to delay.
2. Mr Rampala's claim was perhaps unnecessarily lengthy, complicated and voluminous, and his documentation was confusing at times. However, I am not satisfied that this caused an unreasonable 'obstruction' to the proceedings in the sense discussed in Smyth. In any case, allowances need to be made for the fact Mr Rampala is not a lawyer, or a native English speaker.
3. Aspects of Mr Rampala's case, as originally pleaded, were problematic. However, section 48 is not intended to prevent parties making applications that are unmeritorious or have no prospect of success. Such matters should be dealt with through strike out action under section 32 of the ACAT Act.[29] It is conceivable that costs could be awarded under section 48 where an applicant, being duly on notice, insists on persisting with an application (or a part of an application) that is so clearly without merit that the only intention or consequence is obstruction or delay,[30] but while I am satisfied that aspects of Mr Rampala's case were misguided, I am not satisfied that his conduct is of this kind.
4. In any case, costs are discretionary. Even if I were satisfied that Mr Rampala's actions had led to unreasonable obstruction or delay - which I am not -there is a policy reason why I would have been disinclined to exercise my discretion in this case anyway. While I can appreciate that members of the corporation may be frustrated with what they see as Mr Rampala's intransience, the right of one person to stand against the many, and to seek review of the actions of the majority, is enshrined in the UTM Act. The injudicious use of costs orders under section 48 of the ACAT Act may undermine this right, and disturb the balance of rights in the UTM Act[31].
5. For these reasons, I am not satisfied that it is appropriate to make a costs order under section 48. Accordingly, the application for costs is dismissed.

[1] There was some confusion as to what the material was filed with the Tribunal, as the material filed with the Tribunal appeared to differ to that served on the respondent. The parties cooperated during the hearing to ensure that the Tribunal and parties had the relevant and commonly held documentation before them.

[2] Transcript of proceeding 16 February 2018 pages 26 & 28

[3] [2016] ACAT 101

[4] Brudenall & Ors v Owners Corporation Unit Plan No. 202 [2016] ACAT 101 at [20]

[5] Transcript of proceedings 16 February 2018 page 130

[6] Email from strata management to the unit owners dated 5 June 2017, attachment 5 of Mr Rampala's submissions

[7] Transcript of proceedings 16 February 2018 pages 40, [31]-[32]

[8] Transcript of proceedings 16 February 2018 pages 49, [12]-[13]

[9] Transcript of proceedings 16 February 2018 pages 49, [18]-[19]

[10] Transcript of proceedings 16 February 2018 pages 91, [35]-[38]

[11] Transcript of proceedings 16 February 2018 pages 91. [15]-[19]

[12] Transcript of proceedings 16 February 2018 pages 92, [38]-[44]

[13] Transcript of proceedings 16 February 2018 pages 103, [16]-[19]

[14] Transcript of proceedings 16 February 2018 pages 108, [15]-[20]

[15] Transcript of proceedings 16 February 2018 page 111

[17] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 248 ALR 390, 422 at [140] and [139]-[142] (Kiefel J) Queensland Building Services Authority v Meredith [2010] QCATA 50 at [5] per Alan Wilson

[18] Eg. Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 636.

[19] See: Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; quoted n Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304; (2011) 121 ALD 372, 377 - 378 at [24]

[20] I note that further information, imparted to the Tribunal during the costs application on 9 March 2018, about the holding of a general meeting about which the applicant may not have been appropriately notified, gave me further cause for concern about this, but that information played no part in these reasons.

[21] Brudenall & Ors v Owners Corporation Units Plan No. 202 [2016] ACAT 101

[22] Transcript of proceedings 16 February 2018 pages 25, 30

[23] Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 at [88]

[26] Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [124]; citing Maylor (No 2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [21]-[25], cited with approval in Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 at [92]

[27] CIC -v- ACT Planning and Land Authority [2013] ACTSC 96 Penfold J; note that some legal costs may be recoverable as 'expenses' under section 31 of the UTM Act - see In the Matter of the Ruling Tribunal Section 31 of the Unit Tiles (Management) Act 2011 [2017] ACAT 56. Note also that Member Daniel (as she then was) rejected the argument that section 129(2) of the UTM Act could be used as a basis for an award of costs in The Owners, Unit Plan 840 v Richardson [2015] ACAT 77 at [47]

[29] See Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [140]; Noting that the Tribunal has the express power to 'strike out' vexatious proceedings under section 32(1)(a) of the ACAT Act.

[30] Eg_. Bell & Decastella And Rob De Castella's Smartstart For Kids Ltd_ [2013] ACAT 66; Carew-Neill v Bower [2016] ACAT 54

[31] Noting in particular that section 31 of the UTM Act already provides for the recovery of expenses in some circumstances.