Application SC 18/43278 was filed by the solicitor acting for Ms Price, owner of lot 8 in Strata Scheme No 5319 on 8 October 2018. That application sought three orders being
1. An order pursuant to s 149(1)(a) prescribing the making of a by-law in the terms of the motion entitled "Wall removal works" considered by the Owners Corporation in general meeting on 20 June 2018 and defeated,
2. An order pursuant to s 232(1)(f) requiring the Owners Corporation to sign and seal a Development Certificate Application or Building Certificate Application seeking local government approval for the works set out in the applicant's proposed by-law, and
3. An order pursuant to s 232(1)(e) prescribing the approval of an ordinary resolution in the terms entitled "Lot 8 minor renovations" considered by the Owners Corporation in general meeting on 20 June 2018.
That application came before the Tribunal on 14 November 2018 and directions were made for the parties to exchange documents and granting leave for both parties to be legally represented.
On request of the applicant an extension of time was granted for complying with the directions made on 14 November 2018.
The matter came before me for directions on 30 January 2019 and as there had been no compliance with earlier directions the time-table for preparation was re-set, directions made and the matter adjourned for a four hour hearing after 7 March 2019.
On 28 March 2019 application SC19/15625 was filed by the respondent in the earlier proceedings seeking orders that
1. The hearing of the first matter, then scheduled for 16 May 2019, be vacated,
2. Those proceedings be stayed pending determination of this application,
3. The application be listed for directions,
4. The application be listed for hearing on 16 May 2019, and
5. The earlier proceedings be dismissed.
Application SC 19/15625 was listed for directions before Principal Member Rosser on 11 April 2019. At that time the Principal Member vacated the hearing of application SC 18/43278, ordered that this application be heard on the 16 May, directed the parties to file and serve evidence and submissions and granted leave for the parties to be legally represented.
On 16 May 2019 at the commencement of the hearing of this application the issue for determination, that is, whether application SC 18/43278 should be dismissed due to the existence of an Anshun estoppel or alternatively that it is otherwise an abuse of process was discussed with the parties' representatives. I suggested that the issues raised for determination on the application were not really in the nature of a cross-claim and ought to have been raised in the context of a defence to the earlier proceedings.
However, for the efficient use of Tribunal time it was agreed to deal with the matter by way of a determination by the Tribunal of whether an Anshun estoppel exists in the circumstances of the case or whether it otherwise amounts to an abuse of process. If the determination is that there is an Anshun estoppel that would amount to a full defence to proceedings SC18/43278 that matter would then be listed for dismissal. If it is determined that there is no Anshun estoppel operating as a full defence to application SC18/43278 and that the application is not otherwise an abuse of process, that matter would be relisted at the earliest opportunity for further directions.
[2]
The applicant's submissions
The applicant's submission, shortly stated, was that the application now brought by Ms Price (SC18/43278) seeks to re-agitate the same issues that were determined in the hearing of applications SC 17/51166 and SC 17/52332 and as such SC18/43278 cannot be maintained by reason of the principles articulated in Port of Melbourne Authority v Anshun Pty Ltd [1981]147 CLR 589 ("Anshun").
The background, as stated by the applicant, was that in 2017 a dispute arose between the parties in relation to the removal of a common property wall and the removal of existing flooring and its replacement with floating timber flooring.
On 1 December 2017 the applicant commenced proceedings (SC 17/ 51166) in the Tribunal seeking orders for Ms Price to reinstate the subject wall and flooring on the basis that the work had been performed without the requisite authorisation.
On 8 December 2017 Ms Price filed application SC 17/ 52332 seeking orders that the Owners Corporation consider motions for the retrospective approval of the work that had been undertaken without permission.
On 15 January 2018, prior to determination of the two applications, the lot owner sought the approval of the Owners Corporation in general meeting to authorise the removal of the wall and the removal and replacement of the flooring. That motion was defeated.
On 18 April 2018 applications SC 17/ 51166 and SC 17/ 52332 were heard together.
The Owners Corporation at that hearing sought orders (shortly stated) that
1. Ms Price reinstate the wall between the laundry and pantry of lot 8,
2. Ms Price remove the unauthorised flooring and reinstate the former floor coverings,
3. Ms Price remove and reinstate wall works and hard flooring works other than that approved by the Owners Corporation.
Ms Price's application sought orders (again shortly stated) requiring the Owners Corporation to consider a motion to permit and regulate proposed wall removal works in lot 8 and the passing of by-laws conferring special privileges and exclusive use on the lot owner and approval for the removal of existing flooring and installation of floating floorboards.
That is, the issue for determination was whether Ms Price should reinstate the common wall and flooring or whether the Owners Corporation should be required to consider Ms Price's motions for retrospective approval of the works.
On 20 June 2018 in general meeting Ms Price put a motion to the Owners Corporation seeking a by-law in substantially the same terms as the by-law that was the subject of proceedings SC 17/ 52332. That motion was defeated.
On 8 October 2018 Ms Price commenced proceedings SC 18/ 43278 seeking those orders referred to above.
On 3 January 2019 the Tribunal handed down its decision in application SC 17/ 51166 and application SC 17/ 52332. The determination was that Ms Price was, at her own expense, to reinstate the wall between the laundry and the pantry, to remove the unauthorised works to the floor space and to remove and reinstate common property and lot property works, except as approved by the Owners Corporation, being wall works and hard flooring works.
The applicant relied on the principles of estoppel set out by the High Court in "Anshun" and more recently in Tomlinson v Ramsay Food Processing Pty Ltd [2015] 256 CLR 507 ("Tomlinson") and also the broader principle referred to in that case of abuse of process in respect of conduct that "would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute".
The questions for determination by the Tribunal, it was submitted, were
1. Whether the 2018 proceedings (SC 18/ 43278) is so connected with proceedings SC 17/ 51166 and SC 17/ 52332 that it is unreasonable for the claim now made in SC 18/43278 not to have been made by Ms Price at the hearing of the earlier proceedings, or
2. Whether it would bring the administration of justice into disrepute to permit Ms Price to pursue her application SC 18/43278.
The critical issue at the hearing of the 2017 matters was whether Ms Price should be required to reinstate the common property wall and flooring on which she was unsuccessful. Ms Price now seeks to circumvent the decision of the Tribunal by seeking an order that would require the passing of a by-law to permit the removal of the common wall and the removal and replacement of the flooring. Further, the by-law that Ms Price now asks the Tribunal to prescribe is substantially the same by-law that Ms Price asked the Tribunal to order the Owners Corporation to consider as part of the relief sought on application SC 17/ 52332.
The question, it was submitted, was whether the Owners Corporation could reasonably have expected Ms Price to seek the orders requiring the passing of a by-law as part of the 2017 proceedings. Ms Price could and should have done so.
The current proceedings need to take account of the Tribunal's decision handed down on 3 January 2019. Ms Price is not entitled to have "another bite of the cherry" by expressing the relief sought in slightly different terms. Reliance was placed on the decision of the Court of Appeal in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 for the principle that Anshun estoppel is concerned with substance and not form.
For the above reasons it was submitted the Tribunal should find that there is an Anshun estoppel that operates as a full defence to the proceedings commenced by the lot owner in 2018.
The orders of the Tribunal; made on 3 January 2019 required Ms Price to reinstate the subject work. The orders have not been stayed yet the lot owner has not carried out that work. There should be some finality in respect of the subject matter of the dispute and the orders made on 3 January 2019 were intended to achieve that finality. The Owners Corporation should not now be required to respond to the same matter yet again.
For the above reasons the Tribunal should also find that the proceedings, if allowed to proceed, would bring the administration of justice into disrepute.
[3]
The respondent's submissions
The respondent's submission also recounts the history of the dispute between the parties which although broadly in agreement with the applicant's submission provides some detail not otherwise expressed.
On 19 June 2017 approval was sought for renovation work to be carried out by Ms Price to lot 8. The work for which approval was sought included removal of the wall between the kitchen and the pantry and the wall between the kitchen and the living room, both of which were internal walls to lot 8. Approval was granted for the renovation work with the exception of the wall removal work.
Ms Price had engineering plans prepared for the proposed works and on 30 August 2017 submitted a draft motion for a by-law to the Owners Corporation for consideration in general meeting. Despite that request made on 30 August 2017 and again on 2 November 2017 the Owners Corporation did not include the proposed by-law on the agenda for the general meeting called for 20 December 2017.
As a consequence of that failure Ms Price filed application SC 17/52332 on 8 December 2017 seeking orders that the motions be included on the agenda for the general meeting. Despite orders being made for inclusion the Owners Corporation did not do so but called an extraordinary general meeting for 15 January 2018 at which Ms Price's proposed motions were considered. The motion to approve a by-law to permit removal of internal walls was not approved.
Following the general meeting of 15 January 2018 the Owners Corporation's concerns in regard to the proposed by-law were set out in correspondence from their solicitors to Ms Price. The proposed by-law was substantially amended and re-submitted to general meeting on 20 June 2018, at which time it was again defeated.
It was the submission of the respondent that at the time of the hearing of the two applications (SC 17/ 52332 and SC 17/ 51166) on 18 April 2018 the respondent was not in a position to commence proceedings under the Strata Schemes Management Act 2015 s 149 to ask the Tribunal to make a by-law for wall removal works as at that time the general meeting refusing to make the by-law had not been conducted and was not conducted until 20 June 2018.
The proceedings before the Tribunal on 18 April 2018 (SC 17/52332) was not an application pursuant to s 149 but was an application pursuant to s 232 requesting that the motion be included on the agenda for the AGM.
The precondition for application of an Anshun estoppel, it was submitted, is that the party must have been in a position where it could have raised the issue and that it should have raised the issue in the earlier proceedings. In this case, Ms Price could not have raised the issue now asked to be determined by the Tribunal because the precondition for raising it, that the Owners Corporation had unreasonably refused to make the by-law, had not been met at the time of the hearing on 18 April 2018.
Further, the Tribunal in its decision of 3 January 2019, contemplated the possibility of the works being approved retrospectively by reference to related proceedings and an extensive time being allowed for completion of the work ordered.
[4]
Application of relevant law
As pointed out by the applicant, the New South Wales Court of Appeal in Cachia v Isaacs [1985]3NSWLR 366 ("Cacchia") determined that the principle of issue estoppel arises in respect of the Tribunal's predecessor the Consumer, Trader and Tenancy Tribunal. However, as noted in that decision the informality of Tribunal proceedings may sometimes make it difficult to isolate a relevant issue that has been determined.
For the reasons provided by the Court of Appeal in "Cacchia", and noting that it is not disputed by the parties in these proceedings, I am satisfied that the related doctrine of Anshun estoppel and the principle of abuse of process may be applied in this Tribunal.
That decision is supported by the decision of the Supreme Court in Free v Thomas [2009]NSWSC 642
The passage from the decision of High Court in Anshun upon which the applicant particularly relied was,
There will be no estoppel unless it appears that the matter relied upon…in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
and
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgement which conflicts with an earlier judgement.
And from "Tomlinson"
…if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.
Certainly there is a connection between the subject matter of the current application (SC 18/ 43278) and those matters already determined by the Tribunal on 3 January 2019. The Owners Corporation in proceedings SC 17/ 51166 sought orders for removal of the very works for which the lot owner now seeks orders for prescribing of a by-law authorising her to carry out the work and approving it retrospectively. There is also some connection between the subject matter of the current proceedings and the matters raised by the lot owner in proceedings SC 17/ 52332 in which the application was to put motions dealing with similar by-laws before the Owners Corporation in general meeting.
However, the question determinative of the existence of an Anshun estoppel is whether or not it was unreasonable of the lot owner not to have raised in the proceedings conducted on 18 April 2018 the issue she now seeks to litigate.
The Strata Schemes Management Act 2015 s 149 provides a remedy for a lot owner in a strata scheme where it is alleged that the Owners Corporation has acted unreasonably in refusing to make a common property rights by-law.
The interim order made by the Tribunal on 15 December 2017 was intended to get the motion Ms Price wished to put to a general meeting on the agenda for the meeting to be conducted on 20 December 2017. In the event that was unsuccessful in that the Owners Corporation failed to comply with the order. Nevertheless the Owners Corporation did call an extraordinary general meeting for 15 January 2018 at which Ms Price's proposed resolution was considered and, to the extent of the removal of the walls, was rejected.
Ms Price did not take issue with that decision of the Owners Corporation. Had she considered that decision to be unreasonable she could have brought an action under s 149. In those circumstances it could have been argued that she was being unreasonable in not raising the issue for determination before the Tribunal on 18 April 2018 by seeking leave to amend her claim or by lodging a fresh application before the Tribunal that could have been considered concurrently with the others. Instead Ms Price accepted that the Owners Corporation had legitimate concerns and that she needed to do more to address the concerns expressed to her following the defeat of her motion on 15 January 2018.
A new motion with supporting documentation was subsequently put to the general meeting conducted on 20 June 2018. It was only following defeat of that motion that the lot owner's potential relief pursuant to s 149 was triggered which is the relief now sought on application SC 18/ 43278 filed on 8 October 2018.
I am satisfied therefore that Ms Price, as at the date of hearing of the two 2017 matters on 18 April 2018, could not have sought orders pursuant to s 149 prescribing the making of a by-law because the alleged unreasonable refusal did not occur until 20 June 2018.
Her actions, in not pursuing an amendment of the earlier application to seek orders under s 149 were therefore not unreasonable and did not satisfy the criteria for establishing an Anshun estoppel in relation to her subsequent application (SC 18/43278).
After hearing application SC 18/43278 there is of course the potential for orders being made that are inconsistent with the orders made on 3 January 2019 in matters SC 17/ 51166 and SC 17/52332. However I am not satisfied that potential would bring the administration of justice into disrepute.
The lot owner, Ms Price, is simply pursuing a remedy that, prior to 20 June 2018, was not available to her and it could result in a different outcome.
What is a matter of some concern is the allegation that although no stay has been sought in regard to the orders made on 3 January 2019 the lot owner has failed to comply with those orders.
This decision disposes of application SC 19/15625 and it is now appropriate that application SC 18/43278 should be re-listed for a directions hearing before the Tribunal at the earliest opportunity.
[5]
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
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Decision last updated: 30 July 2019