1. The applicant's solicitor submitted at the hearing that such an order was justified:

...in order to compensate the applicant who is out of pocket by no fault of its own and ought not to be in this situation where they have done everything they can to try and resolve the issues.[24]

1. In particular, she argued that Ms Browne had "spent hours and hours and hours over the years but particularly in relation to this set of proceedings", which the applicant had not sought to recover, including by way of the section 31 application. "Not only attending conferences but liaising with me, preparing the evidence, appearing today. Her costs well exceed $1,000."
2. I am not sure what additional expense the owners corporation incurred as a result of Ms Browne attending to its dispute with Mr Wright. But whatever its nature and extent, I do not have power pursuant to section 129 to make an order compensating the applicant for it.
3. Section 48(1) of the ACAT Act provides that:

The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.

1. Section 129(1)(d) of the UTMA is not "another territory law" within the meaning of section 48(1) as it does not confer a costs power on the Tribunal.
2. The no costs rule established in section 48(1) is subject to the exceptions set out in subsection (2). The applicant did not argue that any of those exceptions applied in this case.

• 106. The only other way in which an owners corporation can recover expenses of litigation, including administrative costs or disbursements incurred in bringing the Tribunal proceedings (e.g. charges by owners corporation managing agent, collections agency) from an owner is as a statutory debt pursuant to section 31 of the UTMA [25], as the corporation did in relation to its legal costs.

Orders sought - for breach of the two rules in relation to the common car park

1. The applicant also sought the following orders "for alleged breach of the two rules in relation to the common car park":
   1. That pursuant to section 129(1)(a) of the Act, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of the Default Rules or Storage Rules.
   2. That pursuant to section 129(2) of the Act, the applicant is authorised to:

(a) Remove all goods parked or stored on the common property in breach of the Default Rules or Storage Rules; and

(b) Recover the costs associating (sic) with removing and disposing of the goods from the relevant owner, bailee or consignee of the goods.

1. That pursuant to section 129(1)(a) or section 129(2) of the Act, the applicant is authorised to:

(a) Remove and dispose of all goods (including motor vehicles) that are parked or stored in the common property car park outside the delineated lines, immediately and without notice; and

(b) Recover the costs associating (sic) with removing and disposing of the goods from the relevant owner, bailee or consignee of the goods.

1. The applicant has liberty to apply to the Tribunal on three days notice in the event of a failure by the respondent to comply with any of these orders.[26]

1. An object of the ACAT Act is to ensure that the decisions of the Tribunal are fair.[27] To this end before making any order against Mr Wright for failing to comply with a RIN I must be satisfied on the balance of probabilities that he actually contravened the relevant rule. It is not enough that the executive had reasonable grounds for believing he did when it authorised the RINs. I must determine, as at the date of the hearing, the issue by applying the law to the facts, as far as they can be established, on the evidence before me.
2. The Storage Rules purport to provide the following built in consequences for breach:

(a) The corporation may remove and dispose of vehicles parked, or other goods stored, in contravention of the Rules.

(b) The owners corporation may impose a charge, as it determines, for permitting goods to be stored.

1. It is noteworthy that, despite Mr Wright flagrantly breaching the rules for years, the corporation has never taken direct action under the rules to remove vehicles. This is despite Mr Wright's mother, who previously owned the unit he runs his business from, encouraging the strata manager on at least two occasions in 2009 and 2010 to use the powers it apparently had under the Storage Rules to dispose of cars and car bodies Mr Wright had left in the car park. [28]
2. Mr Wright continued to fail to comply with repeated requests to remove vehicles from the car park and in 2013 the corporation took action in the ACAT to recover unpaid contributions it had levied against Mr Wright for "storage charges" under the Storage Rules. Mr Wright disputed liability.[29]
3. The validity of the corporation's claim was never tested as the proceedings were settled by consent and without admission. The Corporation at the AGM later that year indefinitely suspended recovery of the storage charges, which were also variously described as the "debt" or "parking fines", upon certain conditions.
4. Why has the corporation been unable through self-help to make Mr Wright comply with the storage rules? Can the Tribunal succeed where the corporation has failed?
5. The answer to these questions requires a closer examination of the measures taken by the corporation to control parking in the common car park, how effective they are, and who is bound by them.
6. Minutes of the AGM held on 3 December 2012 recorded that the Storage Rules passed at the previous AGM had been registered and also stated:
   1. Mr Wright undertook to remove the vehicles/car bodies stored in common car park by Christmas 2012.
   2. The meeting discussed the need for line marking to determine car spaces and noted that this could not be done effectively until the vehicles and car bodies where (sic) removed from the property. Resolved that once the car bodies where (sic) removed the Corporation arranges**:**
      • ➢ To have the car spaces marked.
      • ➢ An onsite meeting to designate parking specifically for each Unit with any leftovers to be general visitor parking spaces.
      • ➢ Consideration given to 'No Parking' and 'timed' parking. (errors in original)
7. The next AGM on 15 November 2013 passed the following motions concerning Mr Wright's use of the car park:

Motion 6 - (Unit 2-Parking)- Resolved that the Owners Corporation accepts that the owners of Unit 2 has made the requested rectifications regarding parking of vehicles at the complex (and minimization of fire risk to the Units Plan).[30]

Motion 7- (Unit 2- Fines)- Resolved that by special resolution: the Owners Corporation determines if the Owner of Unit 2 be liable for outstanding Parking Fines and the interest incurred on these fines in the amount of $5,533.17.

Moved that the amounts of money owing to the Owners Corporation, by Unit 2 due to the incurred fines be removed in the interim, conditional that if the cars reappear the fines incurred will stand as per the abovementioned Special Resolution and be re-levied against unit 2, ( further conditional that a path through the yard be the minimum width of a roller door wide from the front of the yard to the building to allow emergency access).[31] MOTION CARRIED.

1. Significantly, the meeting on 15 November 2013 also agreed to implement the parking plan foreshadowed at the previous AGM to allocate specific spaces in the common car park to individual owners by Motion 4 (Car Park Plan):

RESOLVED that by Special Resolution the Owners Corporation determines the division of the Common Property car parking spaces on a Unit Entitlement basis as per the amended plan as attached.

NB: there is to be no vehicles parked in this area undergoing repairs. Vehicles are not to be parked for more than 24 hours.

1. A resolution was passed (Motion 5) that, the owners corporation register with the Office of Regulatory Services the Resolution from Motion 4. I am not sure whether it was registered or not.
2. In argument, the applicant relied on the assertion that Mr Wright allowed cars or car bodies to be parked or stored for more than 24 hours in the common car park outside the three spaces allocated to unit 2 in the Car Park Plan approved at the AGM on 15 November 2013.
3. At the time of the hearing, five cars were parked or stored in the common car park in front of Mr Wright's fence. Mr Wright told the Tribunal that he owned two of the cars and a friend of his owned the other three. Mr Wright conceded that he had permitted his friend to leave the cars there but assured the Tribunal they would be gone within a matter of days.
4. It seemed that both parties accepted that Mr Wright was only entitled to use the three car spaces allocated to him in the Car Park Plan. Although Mr Wright argued that only applied to cars he had parked, as opposed to those owned by others, which he permitted to be parked there.
5. What was the relevance of the Car Park Plan to Mr Wright's alleged contravention of the Storage Rules? The applicant's argument was predicated on the cars parked outside the allocated car spaces being subject to the Storage Rules and those within Mr Wright's allocated spaces not being.

• 123. I would observe by way of obiter that since the Car Park Plan was approved by a special resolution, the accuracy of this assumption depended on whether the nature of the parking rights purportedly created by the Car Park Plan were by way of a special privilege attached to the leasehold,[32] which requires a unanimous resolution of a general meeting to establish; [33] or a personal contractual license, which does not.

1. The validity of the resolution implementing the Car Park Plan was not in dispute and in any case was not necessary to determine, it being sufficient note that the applicant in these proceedings only sought to enforce the Storage Rules as they applied to that part of the common car park not 'allocated' to Mr Wright.

1. Section 107 of the UTMA deals with the effect of the corporation's rules and states:

(1) There are taken to be agreements under seal between an owners corporation and each of its members, and between each member and each other member, under which the corporation and its members agree to be bound by the rules of the corporation.

(2) An occupier of a unit (who is not the owner of the unit) is bound by each rule of the corporation as if the occupier were the owner of the unit, unless the rules provide otherwise.

(3) If the unit owner does not occupy the unit, the owner is liable separately and together with an occupier of the unit for any breach of the rules of the owners corporation by the occupier, unless the owner proves that the owner took reasonable precautions and exercised appropriate care to prevent the breach.

(4) An occupier of a unit who occupies the unit under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 is not bound by any rule of the owners corporation to the extent that the rule is inconsistent with the prescribed terms (or terms to the effect of the prescribed terms) to which the agreement is subject under that Act, section 8.

1. Mr Wright has run his business from unit 2 since at least 2009. Originally his mother owned the unit, but he acquired ownership of it after she passed away sometime after 15 November 2010.[34]
2. The corporation's rules have applied to him at all relevant times, first as an occupier, and later as an owner.
3. Clearly the Storage Rules apply to Mr Wright to the extent that he stores things described in them on the common property, whether he owns those things or not.
4. Just as clearly, the Storage Rules do not bind third parties, including customers and visitors because they are not parties to the agreement referred to in section 107 of the UTMA. Consequently, the corporation cannot rely on the Storage Rules to either:

(a) move or dispose of vehicles or car bodies on the common property, which are not owned by a unit owner or occupier; or

1. In circumstances where goods are left on the common property and it cannot be established that they belong to either an owner or occupier, the corporation may be able to deal with them as uncollected goods under the Uncollected Goods Act 1996, subject to the conditions set out in that Act. Such a course of action has perils of its own.
2. Other practical courses of action, which do not rely on application of the corporation's rules, may be available to an owners corporation to control parking by persons who are neither occupiers or owners[35] but the corporation does not appear to have resorted to these measures.

1. The Storage Rules were registered at the Land Titles Office sometime before the AGM in December 2012, at which point they became enforceable.
2. Mr Wright promised the owners at the meeting in December 2012 that he would remove the vehicles by Christmas. It seems he was slow to do so:

(a) On 15 January 2013 ten vehicles were observed to be stored on the common property.[36]

(b) On 15 April 2013 six vehicles remained.[37]

(c) On 16 July 2013 Mr Wright agreed to remove the remaining vehicles stored on the common property.[38]

1. On 23 October 2015 at the AGM it was recorded that:

multiple vehicles are still being parked on the Common Property. Unit 2 advised that by the end of November they will no longer have cars parked on the common driveway and that by the end of February the yard will be completely cleared up.

1. By the AGM on 15 November 2013 he had fully complied.[39]
2. A the AGM on 12 October 2016 the owners again discussed Mr Wright storing multiple vehicles on the common property. On 14 December 2016 the strata manager asked Mr Wright to remove vehicles.
3. Mr Wright did not comply with the RIN issued and continued to contravene the Storage Rules. However, by the time of the hearing only five cars were parked in the common area, and the corporation only objected the two parked outside the car spaces allocated to Mr Wright.
4. Although it seems that three of the cars in front of the fence may not have been parked there by Mr Wright, I am satisfied that he at least caused them to be there because he purported to grant permission to his friend to leave them there. In my view the verb 'storage' encompasses not just the physical act of placing something in storage but also causing someone else to store a thing.

Orders in relation to failure to comply with Storage Rule RIN

1. Based on his past behaviour I am satisfied that Mr Wright has contravened the Storage Rules by storing vehicles in the common car park and is likely to repeat that contravention in the future. Accordingly, I order that:
   1. Pursuant to section 129(1)(a) of the UTMA, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of the Storage Rules.
2. It is not appropriate to make the other orders sought by the applicant for the following reasons:

(a) They potentially affect the rights of persons who are not parties to these proceedings.

(b) They have the potential effect of extending the operation of the corporations rules to third parties who are not bound by them.

(c) They have the effect of authorising the recovery of expenses associated with the corporation's enforcement of its rules outside the mechanism provided by the UTMA Act in section 31, and are therefore beyond the power of the Tribunal to make.

1. Mr Wright admitted at the hearing that in the course of his business he regularly brought in cars from other car parks in Fyshwick in the afternoon and parked them in the common car park before dispersing them the following morning.
2. Ms Browne conceded at the hearing that it was difficult to establish that on any particular occasion whether one or more of these cars remained for more than 12 hours in contravention of the Storage Rules.
3. However, Ms Browne told the Tribunal that although this activity mainly occurred outside business hours it unreasonably interfered with the neighbours' business because it impeded access to their units and delivery of goods.
4. I accepted Ms Browne's assertion, the substance of which was supported by a petition in evidence signed by all the other owners which stated in part:
   • U2 is constantly affecting the running of our businesses, illegally parked / stored cars on the common area are blocking delivery trucks and turn-ins for driveways.
   • Any directions to move or relocate these are met with abuses, we have had to get new body corp managers about 6 years ago because of this abusive behaviour from U2.[40]
5. I was satisfied on the balance of evidence that Mr Wright had contravened Rule 5 by causing access difficulties to the owners and occupiers users of other units. I was also satisfied that he was likely to continue to do so given his past behaviour and despite indicating to the Tribunal that his business may soon cease operating due to the commercial pressures caused by the COVID 19 pandemic.

Orders in relation to failure to comply with Rule 5 RIN

1. I made the following order in relation to Mr Wright's continuing failure to comply with the RIN in relation to Rule 5:
   1. Pursuant to section 129(1)(a) of the UTMA, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of Rule 5, including but not limited to obstructing access to the owners, occupiers and users of other units.

1. I agree with the written submission made by the applicant after the hearing with the leave of the Tribunal that a lot owner's right to use and enjoy their own units is subject to the Default Rules to the extent intended by the legislature.
2. The proceedings in 2013 were settled by consent at a preliminary conference on 16 July 2013. The orders agreed to by the parties addressed parking in common property but also included the following order apparently unrelated to the grounds of the application:

Order 3: To minimise risk of insurance being cancelled undertake fire hazard reduction.

1. The owners' concerns regarding fire risk were resolved before the 15 November 2013 AGM. On that date at a general meeting[41] the owners passed Motion 6 which stated:

the owners accepted that Mr Wright had made the requested rectifications regarding parking of vehicles at the complex and minimisation of fire risk to the Units Plan.

1. The meeting went on to confirm that Mr Wright was liable to pay "the fine" (in relation to illegal use of the car park); but suspended payment conditional on, amongst other things, "a path through the yard be the minimum of the roller door wide from the front of the yard to the building to allow emergency access." (Motion 7).
2. Presumably this was a new request as the minutes indicated that Mr Wright had already rectified the previously agreed risks.
3. The minutes of the AGM on 23 October 2015,[42] which Mr Wright attended, contain the following notation:

Vehicles- multiple vehicles are still being parked on the Common Property. Unit 2 advised that by the end of November they will no longer have cars parked on the common driveway and that by the end of February the yard will be completely cleaned up.[43] (emphasis added)

1. The owners corporation did not raise with Mr Wright's his use of his own unit again until 14 July 2017 when Ms Browne wrote to Mr Wright about illegally parked cars and also mentioned "build up on your lot".

As the Unit Plan Managers of the above Unit Plan we have been requested to once again bring your attention to the issues of the illegally parked cars and build up on your lot.

The Units Plan has previously taken this issue to ACAT and will take this action again unless you comply with previous requests to reduce the number of motor vehicles......[44]

1. Ms Browne did not say why the other owners objected to the condition of Mr Wright's lot, nor did she say that it contravened any rule of the corporation.
2. Before any further action was taken a more pressing issue emerged in relation to Mr Wright's use of his unit.
3. The corporation's insurance policy was due to expire on 17 November 2017. On 20 November 2017 Mr Wright refused to allow the corporation's insurer, WFI, access to his unit to conduct an insurance risk assessment. WFI declined to extend the policy beyond February 2018 for the following reasons:

WFI have no issues with all the tenants apart from the 'vehicle storage' whilst the client may not be a wrecker the activities of dismantling vehicles and storage of wrecks and parts are obvious in the photos (of the exterior). Unless we can confirm via detailed internal photos of the unit that his practices are acceptable then we will have to uphold our decline at this point.[45]

1. Between December 2017 and February 2018, the corporation's insurance broker struggled to find alternative insurance. Eventually it managed to secure cover from SCI but only at a significantly increased premium.
2. SCI insured the unit plan without first accessing Mr Wright's unit. On 22 March 2018 Nicholas King inspected the unit plan and produced a report for SCI in which he made the following observation regarding unit 2:

The wrecking yard has been the subject of many complaints from other tenants for several years. The owner of the business has agreed to move out within the next two months. The adjacent owner in Unit 3 has signed a lease to take effect in May re this site. The site is congested and untidy. Work has already begun clearing wrecks from the site. It is to be used for welding/fabrication of steel as per unit 3.[46]

1. Mr King apparently gained access for the purpose of his survey to both Mr Wright's yard and the interior of his warehouse because one photo of each is attached to his report. Nevertheless, he concluded:

There are no recommendation items re any specific tenancies. It is suggested however, that AAL be notified of the uptake of the lease of unit 2.

1. There is no evidence to suggest that, prior to the RINs being issued, the owners corporation had ever alleged that Mr Wright's use of his own unit infringed any of its rules. This contrasts with the corporation's approach towards Mr Wright's use of the common property. Nor had a survey of Mr Wright's unit been undertaken which identified any risk.
2. Against that background I considered whether the executive had the required belief in relation to each of the RINs relating to Mr Wright's use of his own unit.

1. Rule 6 deals with hazardous use of a unit and provides:

A unit owner must not use the unit, or permit it to be used, so as to cause a hazard to an owner, occupier or user of another unit.

The Owners Corporation believes you have contravened Rule 6 due to the state of the internal of your unit (sic) with numerous car bodies and associated goods. Also causing additional costs for the Owners Corporation having to pay additional in insurance premiums.

The Owners Corporation believes that the contravention is likely to continue as you have been notified of this issue over several years.

Removal of vehicles from within the unit to be removed by 70% within 14 days of this notice.

1. The reference in the RIN to the internal use of Mr Wright's unit reflects 'breaches' described in the resolution:
   1. Rubbish accumulating in yard of property
   2. Unkempt state of the unit with overflow of parked cars within the unit
2. It was not clear whether the second grievance related to Mr Wright's yard or his warehouse or both.

1. Neither the executive's resolution nor the RIN explained how the condition of Mr Wright's unit created a hazard for other owners, users or occupiers. The only reason the executive gave in its resolution for objecting to the state of Mr Wright's unit was that it caused "additional costs for the owners corporation having to pay increase in insurance premiums."
2. When I asked the applicant's solicitor why the state of Mr Wright's unit bothered the applicant she said:

It's unsightly. And it's also a hazard because there's no clear path from the internal lot property to the external common property carpark.[47]

1. At the time the executive committee authorised one or more RINs to be issued against Mr Wright there was no evidence that anyone, apart from Mr King on behalf of the corporation's insurer, had conducted a risk survey of Mr Wright's unit including his warehouse.
2. While Mr King noted that Mr Wright's site was congested and untidy, he did not identify any risk associated with it. It was not until February 2019, upon SCI becoming aware that Mr Wright had not moved out as expected, that it revised its risks assessment in relation to unit 2. SCI offered to extend insurance but only on the basis of increased premiums and higher excesses "due to the high level of risk associated with Unit 2".[48] After inspecting the unit on 11 December 2019 SCI refused to renew its insurance policy "due to the occupants of Lot 2."[49]
3. I noted based on the evidence before me:

(a) The first record of the owners raising the issue of emergency access through Mr Wright's yard was at the AGM on 15 November 2013.[50]

(b) By mid-2017 other owners were again expressing concern about the crowded state of Mr Wright's lot.[51]

(c) The photos taken by the SCI's agent, Mr King, on 22 March 2018 show the yard in a congested state; it is hard to draw any conclusion from the photograph of the interior of the warehouse. [52]

(d) Mr King made no comment on any risks associated with unit 2 and simply noted that:

(i) the owner of Unit 2 was observed to be operating a wrecking yard; (an assertion denied by Mr Wright)

(iii) the owner of Unit 2 was reported to be moving out "within the next two months".[53]

(e) Mr Wright conceded at the hearing, "Well, the way I kept the property hasn't changed in 20 years, and I haven't had a fire_._"[54]

1. In light of this history it seems likely that when the executive passed the resolution it was concerned, at least to some extent, that the lack of clear access through Mr Wright's yard could hamper efforts to contain an emergency, including a fire, starting within Mr Wright's unit and spreading to other units or the common property.
2. There is an obvious logical connection between the potential scenario just referred to and the harm Rule 6 is designed to address. I concluded that the executive made that connection because it is obvious, and that they genuinely believed that the condition of Mr Wright's yard contravened Rule 6.
3. My degree of confidence in this inference based on logical connection is only just sufficient to tip the balance of probability in favour of the applicant noting that:

(a) there is no evidence to suggest that anyone acting on behalf of the corporation had ever made such a connection before;

(b) no such connection is apparent from either the words of the resolution or the subsequent RIN; and

(c) the risk assessment done three months before the resolution identified no risk associated with Mr Wright's unit.

Genuine and reasonable belief - reasonable belief

1. Although satisfied that the executive held the genuine belief required, I was not satisfied that a reasonable executive member would have formed such a belief in the circumstances because:

(a) there is no evidence that, when the executive authorised the RINs, either the insurer, or any other qualified person, had identified any current risks associated with the state of Mr Wright's unit;

(b) The executive made no attempt to test their assumption that the state of Mr Wright's yard created a hazard.

1. In my view, the argument put on behalf of the corporation conflated causing a "hazard to an owner, occupier or user of another unit" with causing increased insurance costs for all owners.
2. An insurer is not directly interested in the risk of fire, or any other hazard to the common property or the unit owners. When it undertakes a risk assessment it is assessing and pricing its own risk of having to pay a claim under the policy. However, the insurer's risk is the corollary the risk of personal or property damage of the type covered by the policy occurring. In this case one of the risks the corporation must insure against is fire.[55]
3. WFI declined to reinsure not because there was an unacceptable risk but because it could not satisfy itself that there was not. Whilst Mr Wright's use of his yard was not the deciding factor, it seems from the email that it at least raised a question of risk, which they did not have an opportunity to answer by a thorough inspection of Mr Wright's unit.

1. The standard required of an executive member in exercising their functions to authorise a notice under section 109 reflects their responsibilities under the Code of Conduct. Those obligations relevantly include: a commitment to understanding the parts of the Act relevant to their functions, in this case the rules of the corporation; to act honestly and fairly,[56] to use reasonable care and diligence.[57]
2. The NSW Industrial Relations Commission, in considering whether a safety inspector had formed the reasonable belief necessary to issue a notice stopping work on a construction site, found that the inspector must have an objectively reasonable and balanced approach in issuing the notice, and that he cannot make assumptions and act on them without, at least, attempting to test in a timely and practical manner, the validity of those assumptions.[58]
3. Chief Commissioner Kite SC also said:

An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries.[59]

1. The executive's conclusion that the state of Mr Wright's unit created a hazard was not supported by the recent risk assessment conducted by Mr King. Furthermore, the executive failed to use its investigative powers to test its assumption.
2. Default Rule 10 enables an executive committee representative to inspect a unit and states:

(1) An executive committee representative may do any of the following in relation to a unit at all reasonable times-

(a) if the committee has reasonable grounds for suspecting that there is a breach of the Act or these rules in relation to a unit- inspect the unit to investigate the breach;

(b) carry out any maintenance required under the Act or these rules;

(c) do anything else the owners corporation is required to do under the Act or these rules.

(2) An executive committee representative may enter a unit and remain in the unit for as long as is necessary to do something mentioned in subrule (1).

(3) An executive committee representative is not authorised to do anything in relation to a unit mentioned in subrule (1) unless-

(a) the executive committee or representative has given the owner, occupier or user of the unit reasonable notice of his or her intention to do the thing; or

(b) in an emergency, it is essential that it be done without notice.

(4) The executive committee may give a written authority to a person to represent the corporation under this rule.

1. Subject to section 45(2), an executive committee of an owners corporation may engage or employ people on the terms it considers appropriate to help in the exercise of the corporation's functions.[60] It was open to the executive to engage a suitably qualified expert to access all parts of Mr Wright's unit to conduct a risk assessment.
2. Although Mr Wright appears to have let Mr King inspect the interior of his warehouse for SCI, he previously refused WFI's agent access, prompting the strata manager to at least consider using the corporation's powers under Rule 10 to gain access.
3. On 23 November 2017 in response to an email from WFI notifying its decision not to extend insurance due to Mr Wright's refusal to allow their agent to inspect his unit, Janet Browne responded:

Appreciate the update. I will discuss with the other owners as to what action they want to take. Did unit 2 actually communicate verbally. He was in our office at 1.00 pm abusing us.

Or can we ask the owner to provided (sic) detailed internal photos.

1. Section 109 is only engaged if the executive holds a genuine and reasonable belief pursuant to section 109(1). In the case of the Rule 6 RIN, although the executive held the relevant belief it was not reasonable for it to do so and so the corporation could not rely on the authority of section 109 to apply to the ACAT for orders in relation to Mr Wright's failure to comply with the RIN.

(1) A unit owner must ensure that the unit is in a good state of repair.

(2) A unit owner must carry out any work in relation to the unit, and do anything else in relation to the unit, that is required by a territory law.

The Owners Corporation believes you have contravened Rule 3 due to the unkempt state of the unit with overflow of parked cars within the unit and causing additional costs for the Owners Corporation having to pay additional in insurance premiums.

1. The contravention described in the RIN reflects the concerns in the resolution about "the unkempt state of the unit with overflow of parked cars within the unit"; and possibly also the concern about rubbish accumulating in Mr Wright's yard.
2. The owners corporation had not previously characterised Mr Wright's longstanding failure to keep his yard tidy as failure to ensure his unit was in a good state of repair.
3. Repair in the context of the condition of something is defined in the Macquarie International English Dictionary as "the condition of something in terms of whether it needs mending or fixing" - an example is given of an air conditioner no longer in good repair.
4. Mr Wright's unit did not need to be mended or fixed. It needed to be tidied: that is to be "made neat and orderly."[61]
5. There is a clear distinction between a state of repair and a state of tidiness. It seems unlikely that the executive genuinely confused the two, and if they did it was not reasonable to do so. Accordingly, I concluded that the executive did not have the requisite belief for the purposes of section 109(1).

(1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit.

(2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use.

(3) Permission may be given subject to stated conditions.

The Owners Corporation believes you have contravened Rule 7 due to the state of the internal of your unit with numerous car bodies and associated goods and continual illegal parking of vehicles on common property. Also causing additional costs for the Owners Corporation having to pay additional in insurance premiums.

The Owners Corporation believes that the contravention is likely to continue as you have been notified of this issue over several years.

Removal of vehicles from within the unit and the common property within 14 days of this notice.

1. The executive committee had genuine and reasonable belief that Mr Wright's use of the common car park interfered with his neighbours in ways which contravened Rule 5. But what was it about Mr Wright's use of his own unit that annoyed his neighbours?
2. The applicant's solicitor submitted that the accumulation of motor vehicles and parts within Mr Wright's unit was a nuisance and substantial annoyance to the other owners because:

(a) there was no clear path through his yard from his warehouse to the common property car park thereby creating a hazard; and

1. It was also apparent that a substantial source of annoyance was the perception that the state of Mr Wright's yard and his refusal to allow the corporation's insurer inside his warehouse had resulted in increased premiums for all owners.
2. I have also already found that at the relevant time the executive committee did not have reasonable grounds for believing that the condition of Mr Wright's unit created a hazard for other owners.
3. Mr Wright responded to the suggestion that his yard was unsightly by observing that it was located on an "industrial estate". No evidence was presented as to the permitted uses for the unit plan, but I note that Mr King's report described the site as:

a group of factory units..., other businesses operation on site included a motorcycle smash repairer, an welding and steel fabricating workshop and a kitchen manufacturer. [62]

1. Whilst I accepted that some of Mr Wright neighbours might be annoyed by the messy appearance of his yard I was not satisfied that a reasonable executive member would believe it constituted a substantial annoyance given the character and use of the unit plan as a whole.
2. When the executive decided to initiate action against Mr Wright for contravening the corporation's rules, they were primarily concerned by the additional cost Mr Wright had caused the owners by his refusal to allow WFI access to his unit to conduct a risk survey.
3. At the hearing I expressed concern that the Default Rules of the corporation cannot be interpreted in a way which unreasonably interfered with a unit owners right to use their own property.[63] I referred to the decision of Senior Member Robinson in The Owners of Units Plan No 928 v Cochaud[64] (Cochaud) which I thought might be of relevance on this point.
4. In a written submission made after the hearing with the leave of the Tribunal the applicant submitted at paragraph 16 that:

Consequently, the Applicant submits that Cochaud supports the propositions are in effect subject to some extent to the Applicant's authority over individual units, as intended by the legislature and as per the Default Rules.

1. While I agree with that proposition it does not address how the Default Rules should be interpreted.
2. In my view a reasonable executive member would not have formed the view that Mr Wright's denial of access in the circumstances constituted the type of use which Rule 7 is intended to prohibit. I reached this conclusion for the following reasons:

(a) As Mr Wright was not obliged to allow the insurer's agent access to his property, it would be unreasonable to interpret Rule 7 as prohibiting him from lawfully exercising his right to quiet possession of his own property absent any clear words to that effect.

(b) The owners corporation did not avail itself of the legitimate process to compel access upon giving reasonable notice established by Default Rule 10.

(c) Mr Wright's refusal of access did not constitute a nuisance because it was not ongoing, and any harm it caused was a not a reasonably foreseeable consequence of the refusal.

1. Although there is no rule against an owner or occupier through their act or omission causing an owners corporation to incur additional insurance costs, that does not preclude an application to recover that expense as a statutory debt pursuant to section 31 of the UTMA.

Conclusion RINs in relation to use of unit 2 - where to from here?

1. I decided not to make orders in relation to Mr Wright's use of his own unit because the relevant RINs were not authorised in accordance with the requirements of section 109(1) and hence the owners corporation had no authority to apply for orders in relation to Mr Wright's failure to comply with them pursuant to section 109(3)(f)(ii).
2. This was not a decision reached lightly because since the RINs were issued the situation has significantly deteriorated due to Mr Wright's failure to tidy up his unit. The corporation now faces the real and imminent prospect of losing its insurance cover unless the insurer receives satisfactory evidence that Mr Wright had tidied up his unit. This would have potentially disastrous consequences for all owners including Mr Wright.
3. The corporation has a number of options available to it, including utilising Default Rule 10 to organise an independent risk assessment and issuing RINs based on current circumstances. If any person believes that the condition of a premises poses a risk to public safety or to the safety of people who are likely to be at the premises then it is open to them to report the concern to the chief officer (fire and rescue service).[65] None of these methods are guaranteed to succeed.
4. All involve delay, stress and expense to all owners, which could be avoided if Mr Wright simply tidied up his unit and provided evidence of doing so to the satisfaction of the insurer.

[1] Unit Titles (Management) Act 2011 section 110 specifically deals with this offence

[2] Unit Titles (Management) Act 2011 section 100

[3] ACT Civil and Administrative Tribunal Act 2008 section 9

[4] ACT Civil and Administrative Tribunal Act 2008 section 11

[5] Martin v Owners Units Plan No 220 & Ors [2017] ACAT 22

[6] See for example Corby v The Owners Corporation Unit Plan 1035 [2019] ACAT 45

[7] Uren & Anor v The Owners - Units Plan No 396 [2017] ACAT 51 a case involving a merits review of an unsuccessful resolution under section 129(g) at paragraph 17(c)

[8] Legal Definition of a 'reasonable person' from the Merriam Webster online legal dictionary: a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something (as the existence of negligence)

[9] Marshall v Director General, Department of Transport [2001] HCA 37 at [62]

[13] UTMA section 110 specifically deals with this offence

[14] Schedule I Part 1.1 UTMA Executive Committee's Code of Conduct paragraph 1

[15] Schedule I Part 1.1 UTMA Executive Committee's Code of Conduct paragraph 2

[16] Schedule I Part 1.1 UTMA Executive Committee's Code of Conduct paragraph 3

[17] As set out in Schedule 4 of the UTMA

[18] Which the Default Rules were amended to include by a special resolution of the AGM in October 2011 pursuant to section 108(1) of the UTMA, and which took effect sometime before the next AGM upon being registered by the Registrar of Land Titles: section 108(2) UTMA.

[19] Minutes of AGM held 3 December 2012.

[20] Witness statement of Janet Browne of 19 March 2020 at page 94

[21] Witness statement of Janet Browne of 19 March 2020 at page 88

[24] Transcript of Proceedings 8 April 2020, page 54

[25] In the Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56

[26] Applicant's submission of 19 March 2020 page 6

[28] See two letters from Lady Stevenson to ACT Strata Management Services; undated in response to letter of 19 August 2009; and dated 15 November 2010 annexed at pages 33 and 34 respectively of Witness Statement of Janet Browne.

[29] The Owners Unit Plan No. 14 v Matthew Wheeler Hanford Wright XD 784/2013 resolved through an Order by Consent

[32] UTMA section 20(2) prohibits the transfer, sublet or mortgage of the owners corporations interests in the common property

[33] UTMA section 22(1) - see also The Owners -Unit Plan No.116 v Nicholson & Ors [2012] ACAT 63.

[34] Being the date of the last letter in evidence from her to the strata manager at the time

[35]Christopher R. Kerin, Guide to ACT Strata Law Kerin Benson Lawyers (2017), at 111-112

[36] letter from ACT Strata Management Services to Mr Wright dated 16 January 2013

[37] letter from ACT Strata Management Services to Mr Wright dated 19 April 2013

[38] See ACAT orders made by consent on this date

[39] Minutes exhibited Witness statement of Janet Browne at page 53 to 55

[40] Exhibit Witness statement of Janet Browne at page 11

[41] Minutes of General Meeting held 15 November 2013 exhibited Janet Browne's Witness Statement at pages 53-55

[42] Minutes of General Meeting held 15 November 2013 exhibited Janet Browne's Witness Statement at pages 56 to 58

[43] Minutes of General Meeting held 15 November 2013 exhibited Janet Browne's Witness Statement at page 57

[44] Minutes of General Meeting held 15 November 2013 exhibited Janet Browne's Witness Statement at page 63

[45] Witness statement by Janet Browne of 19 March 2020 at page 71

[46] King's Risk assessment report annexed to witness statement of Grant Taylor page 21

[47] Transcript of proceedings 8 April 2020 page 27

[48] Witness statement of Mr Taylor, SCI State Manager for the ACT and NSW dated 19 March 2020 at paragraphs 18-20

[49] Letter from SCI to the Owners of UP No.14 dated 11 December 2019 exhibited to Janet Browne's witness statement at page 131

[51] Letter from Ms Browne to Mr Wright dated 14 July 2017 Exhibited to Janet Browne's witness Statement at page 63

[52] Exhibited to Mr Taylor's witness statement at page 22 Image 3 "U2- Wrecking Yard" ; and Image 4 "U2- Interior"

[53] Mr King's findings as summarised by Grant Taylor at paragraph 17 of his witness statement

[54] Transcript of proceedings 8 April 2020 page 28

[58] Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIR Comm 1002 at paragraph 96

[59] Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIR Comm 1002 at paragraph 95

[61] Macquarie International English Dictionary Second Edition Bloomsbury Publishing 1999, 2004

[62] Report of Nicholas King exhibited to Grant Taylor's witness statement at page 20

[63] Transcript of proceedings 8 April 2020 pages 36-37

[64] [2017] ACAT 66

[65] See Emergencies Services Act 2004 Part 5.4