Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 53, 82, 105A

Privacy Act 1988 (Cth)

Strata Schemes Management Act 2015 (NSW) ss 182, 183

Unit Titles (Management) Act 2011 s 119

Legislation cited: ACT Civil and Administrative Tribunal Rules 2020 r 91

Cases cited: ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd [2021] ACAT 37

B & T Constructions (ACT) Pty Ltd v Constructions Occupations Registrar and the Owners - Unit Plan 3324 [2013] ACTSC 219

Bailey v Bottrill [2021] ACAT 103

Clayton v Bant [2020] HCA 44

Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116

GP v Mackenzie & Ors [2018] ACAT 96Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275

Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173

Legal Practitioner v Council of the Law Society (ACT) [2011] ACTSC 207

Leonard v Michie [2019] ACAT 14

Piscioneri v Reardon [2016] ACTCA 33

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Tam v Du [2019] ACAT 94

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Tong v Tong [2021] ACAT 8

UBS AG v Tyne [2018] HCA 45

List of

Texts/Papers cited: Lisa Burton Crawford and Dan Meagher, 'Statutory Precedents under the "Modern Approach" to Statutory Interpretation' [2020] SydLawRw 10; (2020) 42(2) Sydney Law Review 209, 209

Tribunal: Acting Presidential Member Prof. P Spender

APPEAL TRIBUNAL: Acting Presidential Member Prof. P Spender

1. The order dated 20 July 2021 that the appellant give the first respondent access to the Corporate Register in accordance with section 119 of the Unit Titles (Management) Act 2011 is set aside.

2. Pursuant to section 48(2) of the ACT Civil and Administrative Tribunal Act 2008, the first respondent is to pay the appellant within 28 days the sum of $1,691.75, comprising:

(a) $1,186 for the appeal filing fee; and

(b) $505.75 for transcript fees.

1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' or 'Appeal Tribunal' refers to the presently constituted Tribunal. When referring to the first instance decision, the Tribunal uses the expression 'original decision', 'original tribunal', 'Presidential Member' or the 'first instance proceedings/decision'. The appellant and the first respondent to the appeal are referred to intermittently as the 'Owners Corporation' or 'OC' and 'Ms Davidson' respectively. The latter was the applicant in the first instance proceedings.

2. In this appeal, the appellant has alleged several errors of fact and law including failures of procedural fairness and errors in the interpretation of provisions of the Unit Titles (Management) Act 2011 (UTM Act). The Appeal Tribunal has concluded that the appellant has not demonstrated that the grounds of appeal other than Ground 8 constitute errors which would affect the result of the first instance proceedings. Ground 8 concerns the interpretation of Part 7 of the UTM Act (particularly section 119) and the definition of 'eligible person' in the Dictionary of the UTM Act. On the Appeal Tribunal's preferred construction of these provisions, the order made at first instance is in error and should be set aside. The appeal is therefore upheld.

3. This matter concerns an appeal from the original decision[1] that was filed on 22 July 2021.

4. Section 82(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that an appeal tribunal may, as it considers appropriate, deal with an appeal as either a new application or as a review of all or part of the original decision. The Appeal Tribunal dealt with the application as a review of the original decision but granted leave to the parties under rule 91 of the ACT Civil and Administrative Tribunal Rules 2020 to file and serve evidence regarding email communications that occurred between the parties in June 2021. This evidence is discussed below.

5. In the recent decision of Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory[2] the tribunal distilled from the case law the following key principles which guide the conduct of appeals in the tribunal:

1. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Section 82 of the ACAT Act provides the process by which such appeals are to be conducted.

2. The manner in which appeals in the tribunal are dealt with now appears to be substantially settled law. Section 79(3) of the ACAT Act provides that a party to an original application may appeal the decision to the tribunal "on a question of fact or law." The case law on section 79(3) recently affirmed and applied in Bailey v Bottrill (Bailey)[3] and in ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd (Newham)[4] has interpreted section 79(3) to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.

3. Section 82 of the ACAT Act gives the Appeal Tribunal a choice as to the method by which an appeal pursuant to section 79 should be heard. The case law on section 82 was similarly affirmed and applied in Bailey and Newham.

4. That case law draws upon Refshauge ACJ's consideration in Giusida Pty Limited v Commissioner for ACT Revenue (Giusida)[5] of the method by which a tribunal appeal should be heard. His Honour repeated[6] his earlier observation in Legal Practitioner v Council of the Law Society of the ACT (Legal Practitioner)[7] that an appeal under section 82(a) of the ACAT Act is what is usually called a "hearing de novo" and an appeal under section 82(b) is what is usually called a 'rehearing'. ...

5. Bailey[8] and Newham[9] similarly affirms the tribunal's own distillation of principles relevant to such appeals set out in the decision in Excel Intelligent Pty Ltd v Thomson (Excel Intelligent).[10] That distillation drew upon remarks of Burns J in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar (B & T Constructions)[11] where His Honour quoted from a series of judgments about the nature of a rehearing.[12] The tribunal distilled five principles from this review:[13]

(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.

(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).

(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

(d) The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).

(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand. [emphasis in original and footnotes retained]

6. This Appeal Tribunal has adopted the approach and principles described above in reviewing the original decision and reaching its conclusion.

7. On 7 May 2021, Ms Davidson, the original applicant in these proceedings, lodged an application in the tribunal seeking orders to review a decision of the Executive Committee of the Owners Corporation in relation to reimbursement for replacement windows in her unit. This application was allocated the matter number UT 12/2021. It was in the course of these proceedings (the original proceedings) that the applicant filed an interim application on 15 June 2021 seeking access to the corporate register (Interim Application). It is the determination of that Interim Application on 20 July 2021 that is the subject of this appeal.

• 8. On 9 June 2021 the first directions hearing in the original proceedings was held before a Presidential Member of the tribunal (first directions hearing). At the first directions hearing, Ms Davidson raised concerns that the OC, through its managing agent, was refusing her access to the corporate register.[14] Ms Davidson said that she wanted access so she could write to the owners in relation to an upcoming general meeting.[15] She stated during the first directions hearing that she had made a request in writing as required by the UTM Act_,_ but the request had been refused.[16]

9. During the first directions hearing the OC's representative confirmed that access had been denied based on legal advice that the OC had received.[17] The Presidential Member discussed the relevant sections of the UTM Act with the parties and suggested that the OC take further legal advice and liaise with the applicant about her outstanding request.[18] If the issue remained unresolved, the Presidential Member said that the applicant could "apply to the ACAT to seek orders for access, as a part of the current application".[19]

10. On 15 June 2021, the applicant lodged the Interim Application - that is, an application for interim or other orders, seeking urgent orders for access to the corporate register.[20] The application for interim orders stated as follows:

I ask [the Presidential Member] to make an order that enables me (Marion Davidson) to access the Owners Register Units Plan 1475.[21]

11. On 20 July 2021, the Presidential Member heard the application for interim orders and made the following order (Access Order):

1. The first respondent is to give to the applicant access to the Corporate Register in accordance with section 119 of the Unit Titles (Management) Act 2011 forthwith.[22]

12. On 25 August 2021 a hearing was held in UT 12/2021. At the conclusion of this hearing, a Senior Member of the tribunal affirmed the decision of the Executive Committee of the OC to accept a quotation for windows and pay a sum to the applicant for the windows she had replaced. The applicant's application in UT 12/2021 was otherwise dismissed.

13. The OC initially lodged the present appeal on 22 July 2021.[23] It filed an amended application for appeal on 26 August 2021.[24] On the same day, the appellant lodged a list of alleged errors, and submissions in support of its grounds of appeal. The appellant did not appeal the orders made by the Senior Member on 25 August 2021, rather it argued that the order made by the Presidential Member on 20 July 2021 should be set aside on appeal. The first respondent (Ms Davidson) made submissions in relation to the appeal on 30 August 2021.

15. The Presidential Member in the original proceedings gave oral reasons for her decision at the conclusion of the hearing on 20 July 2021. Those reasons were supplemented by written reasons that were published on 13 August 2021.[25] Most of the errors alleged by the appellant were sourced in the written reasons but some emanated from the transcript of the hearing held on 20 July 2021 when the relevant order was made.[26]

16. The original tribunal held that section 119 was the relevant section of the UTM Act that applied to the Interim Application[27] and this 'entitled' the applicant to access to the relevant records.[28] The original tribunal considered that section 116 of the UTM Act was irrelevant to the Interim Application.[29] The ambit of the information sought - the contact details of every unit owner in the OC and not just information about Ms Davidson's own unit or the common property - was discussed in the hearing.[30] The Presidential Member characterised the relevant right as follows:

We're looking at the right of ... an owner to know who their neighbours are and how to write to them. Okay?[31]

17. The original tribunal was satisfied that the applicant had met the requirements in section 119(6) of the UTM Act because she had made a written request and although a fee had not been paid, this element of section 119(6) was not required because no fee had been fixed by the OC. To summarise the reasoning on this aspect of the first instance proceedings:

(a) Written Request: Although not expressly discussed at the hearing on 20 July 2021, as stated above, at the first directions hearing the applicant told tribunal she had made a written request for access. No record of this assertion was provided by the applicant, but the assertion was not disputed by the OC.

The respondents did not suggest that the applicant had failed to make a request in written form as required by section 119 of the UTM Act.[32]

(b) Prescribed Fee: It was not disputed that no fee was paid but the original tribunal was satisfied that the OC had not required or fixed a fee. The original tribunal stated:

...Nor was there any suggestion that the applicant had failed to pay the required fee. Indeed, it seemed that this particular owners corporation had not yet decided to impose any fee in relation to request for access by an owner under section 119.[33]

18. In the written reasons, the original tribunal provided detailed reasons as to why her interpretation of section 119 of the UTM Act was not inconsistent with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.[34] This analysis did not form part of any of the grounds of appeal.

_In exercising its functions under this Act, the tribunal must - _

(a) _seek to ensure the procedures of the tribunal - _

(i) are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(ii) are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and

(b) observe natural justice and procedural fairness.

1. if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--

(i) the filing fee for the application; and
>
> (ii) any other fee incurred by the applicant that the tribunal considers necessary for the application;

_1. This section applies if, at any stage before an application is finalised in the tribunal - _

(a) a party to an application applies to the tribunal for an order under this section; and

(b) the tribunal is satisfied that, if an order under this section were not made, the party applying for the order would be disadvantaged or suffer harm.

2. The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.

Note The tribunal must observe natural justice and procedural fairness (see s 7)

105A Advising Attorney-General about systemic problems

_1. This section applies if it appears to the tribunal that applications to the tribunal indicate a systemic problem in relation to - _

(a) the operation of an authorising law; or

(b) other matters that come to the tribunal's attention in the course of the tribunal exercising its functions.

2. The president must tell the Attorney-General about the problem.

Unit Titles (Management) Act 2011

19. Part 7 of the UTM Act deals with owners corporation records including the type of information recorded; who is entitled to access that information and in what circumstances; the manner in which access is to be provided; and the consequences of failing to provide access as required.

20. The information sought by the first respondent was the names and addresses of her fellow unit owners so that she could write to them regarding an agenda item at an upcoming general meeting.

21. Section 113 of Part 7 provides that a corporate register must be established and maintained, and record information mentioned in section 114(1) for each unit, including the name of the owner and the owner's address for correspondence.

22. Sections 116 and 119 require an OC to allow a person access to information including the names and addresses for correspondence of unit owners recorded in its register. The entitlement to access conferred by each provision is subject to different conditions.

_1. On request by an eligible person for a unit or the common property, the owners corporation for the units plan must allow the person, within 14 days after the request is received, to inspect, and take a copy of - _

(a) for a request by an eligible person for a unit - the information on the corporate register about the unit and any easements with which the common property is benefited or burdened; or

(b) for a request by an eligible person for the common property - the information on the corporate register about any easements with which the common property is benefited or burdened.

2. On request by an applicant for a court order under this Act, the owners corporation must allow the applicant to inspect, and take a copy of, the names and addresses for correspondence recorded on the corporate register of each unit owner and anyone else with an interest in a unit, or the common property, that is recorded on the register.

Note This is to enable the applicant for the order to comply with the requirements for service under this Act.

3. A request must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount prescribed by regulation.

4. The corporate register must be kept in a way that ensures that a person who is entitled to inspect the register does not have access to any information the person is not entitled to inspect.

1. if the register is kept in a book, the information could be kept on a separate page for each unit and for the common property

2. if the register is kept in a computer database, the information could be stored so that information for each unit and the common property can be separately displayed, printed out or emailed

Note The corporate register contains personal information as defined under the Privacy Act 1988 (Cwlth). The Australian Privacy Principles under that Act apply to the owners corporation in relation to the collection, use, disclosure and storage of personal information.

119 Unit title certificate and access to owners corporation records

_1. An eligible person for a unit or the common property in a units plan may request the owners corporation give the person - _

(a) a certificate stating information about the unit or the common property suitable for disclosure to a potential buyer (a unit title certificate); or

(b) a certificate updating information in the unit title certificate (a unit title update certificate).

2. The owners corporation must, within 14 days after receiving a request under subsection (1), give the person the requested certificate.

3. The Minister may determine the information that must be included in a unit title certificate or a unit title update certificate.

_4. On request by an eligible person for a unit or the common property to inspect the records of an owners corporation, the corporation must, within 14 days after the day the request is received, allow the person - _

_(a) to inspect - _

(i) the information on the corporate register; and

(ii) any other records held by the corporation; and

(b) to take copies of any document inspected.

5. If a dispute exists, the owners corporation may withhold from inspection documents subject to legal professional privilege in relation to the dispute.

6. A request under this section must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount determined by the Minister.

7. A determination under subsection (3) or (6) is a disallowable instrument. ...

eligible person includes a person who enters into a contract for sale of the unit in relation to which access to information is required.

24. The Dictionary of the UTM Act defines 'eligible person', for a unit or common property in relation to which access to information is required to mean:

(a) the owner, or another person with an interest in the unit, or in an easement over the common property; or

(b) for a unit that is owned, or part-owned, by a company - the representative of the company; or

(c) anyone authorised in writing by a person mentioned in paragraph (a) or (b); or

(d) if access to the information is necessary or desirable for the administration of this Act - the planning and land authority.[35]

25. Section 121 provides that it is an offence by each member of the executive committee if an owners corporation fails to comply with a request for information or a unit title certificate.

26. As stated above, the appellant originally lodged an appeal on 22 July 2021 and then an amended application for appeal on 26 August 2021. The appellant relied on the following alleged errors in the original decision as its grounds of appeal.[36] The numbering of the grounds of appeal used by the appellant will be adopted by the Tribunal in its reasoning under the 'Consideration' heading below.

(1) The original tribunal erred by finding[37] that the first respondent made a request in writing and paid the prescribed fee as required by section 119(6) of the UTM Act.

(2) The original tribunal erred by holding that section 119 of the UTM Act conferred on the tribunal a power to make procedural directions to order the appellant to grant access to the corporate register.

(3) The original tribunal erred by failing to give the appellant procedural fairness by deciding the interim application at its first return.

(4) The original tribunal erred by making the Access Order on an interim basis in circumstances where the tribunal could not be satisfied that if the Access Order was not made the first respondent would be disadvantaged or suffer harm.

(5) The original tribunal erred by making the Access Order on an interim basis in circumstances where the tribunal could not be satisfied that the Access Order was appropriate to protect the position of the first respondent.

(6) The original tribunal erred by holding that the appellant had the onus of showing that the first respondent had not made a request in writing and paid the prescribed fee.[38]

(7) The original tribunal erred by finding that the first respondent made a request in writing and paid the prescribed fee[39] such finding having been made on the basis of no evidence.

(8) The original tribunal erred by holding that section 119 of the UTM Act conferred on the first respondent a right to access information in relation to a unit in which the first respondent did not own or have an interest in.

27. Counsel for appellant summed up grounds of appeal as follows:

... [I]n this case, it might just be easiest to deal with the meat of the complaint. And that is that there was simply no evidence, or insufficient evidence for the tribunal, below, to be satisfied that the actual elements of section 119(4) were met.

The applicant, on the motion, bears the onus of proving that each of the factual elements were met. These factual elements being that there was an application made, in writing, that the fee was paid, and that the applicant was an eligible person applying for access. And that concept of an eligible person is relevant, because the reason why somebody is eligible, as I'll submit later, is relevant to the scope of the information that you [a]re entitled to get.[40]

28. The appellant made the following submissions. The Appeal Tribunal has cross-referenced these submissions to grounds of appeal set out above and re-ordered them to link the appellant's submissions to the consideration given to them by the Tribunal as set out below.

29. A preliminary issue raised by the appellant in its written submissions and in the presentation of its case by counsel at the hearing of the appeal was whether the original tribunal denied the appellant procedural fairness by determining a substantive dispute at an interim hearing.

30. The appellant argued that the order made by the original tribunal was substantive in nature rather than procedural because it conferred a substantive right on Ms Davidson to access the corporation's records, and a substantive obligation on the corporation to facilitate that inspection.

31. The Tribunal will set out the appellant's argument about the substantive nature of the dispute in more detail below under Ground 2. As regards the question about whether procedural fairness was accorded, the appellant submitted that, by determining a substantive issue at an interim hearing, the original tribunal denied it natural justice and procedural fairness. The appellant contended that the procedure followed did not give it an opportunity to know the case against it and have an opportunity to meet it:

The effect of the Tribunal proceeding in this way was to treat the Interim Application as an application to amend the Originating Application to complain about an imputed breach of s 119 of the UTMA by the appellant. The Tribunal then proceeded to decide that question of substance as a separate question on a summary basis without affording the appellant an opportunity to defend the new allegations made against it.[41]

32. The appellant argued that it was not given an opportunity to answer, and lead evidence on, the following material facts:

(a) Whether Ms Davidson made a request in writing for access accompanied by the prescribed fee. The appellant submitted that, had it had sufficient notice, it could have led evidence relevant to the issue of whether the owners corporation had fixed a fee to access records.

(b) Whether Ms Davidson is an eligible person in respect of each unit for which access is being sought.

(c) Whether 14 days had not elapsed since Ms Davidson made a request in writing for access accompanied by the prescribed fee.[42]

Grounds 1 and 7 - the factual requirements of section 119(6) of the UTM Act

1. The original tribunal erred by finding ...[43] that the First Respondent made a request in writing and paid the prescribed fee as required by s 119(6) of the UTMA.

7. The original tribunal erred by finding that the first respondent made a request in writing and paid the prescribed fee[44] such finding having been made on the basis of no evidence.[45]

34. Regarding these grounds, the appellant contended that:

No party led evidence in respect of any of the factual conditions set out in s 119 of the UTMA. The only "evidence" of Ms Davidson having made a written request was found in the assertion she made in the course of the first directions hearing. The finding made [at paragraph 27 of the original decision][46] that the appellant breached s 119 was not reasonably open on the whole of the evidence.[47]

[For example], [t]he [original tribunal's] finding at ... [17][48] that the appellant had not decided to impose any fee in relation to requests for access by an owner under s 119 was extracted in the course of submissions at the second return ...[49] and not based on evidence filed by the appellant in answer to the Interim Application. The appellant could have led evidence relevant to that issue.[50]

If the first factual precondition - the making of an application on payment of a fee - was not met then the 14 day period for performance does not commence. It would then follow that there could be no breach of s 119 of the UTMA calling for this Tribunal to remedy.[51]

35. The appellant argued that the original tribunal's reasons[52] appear to reverse the onus of proof by requiring the appellant to disprove the elements of subsections 119(4) and section 119(6) of the UTM Act, the satisfaction of which may give Ms Davidson a remedy.

Grounds 4 and 5 - The mandatory requirements for an interim order were not met

36. The Tribunal failed to take into account the mandatory requirements for an interim order prescribed by section 53 of the ACAT Act. In particular, the orders were not made for permitted purpose under section 53 - to avoid disadvantage or harm to Ms Davidson or to protect her.[53]

Ground 2 - order was substantive and could not be determined on a procedural basis

37. The appellant elaborated this point as follows in its written submissions and in the hearing of the appeal. It argued that the orders made by the original tribunal pursuant to section 119 of the UTM Act were substantive rather than procedural and therefore could not be determined on an interim application.

38. The appellant submitted that it could be inferred from the form of the orders and the circumstances of the hearing that the original tribunal considered that section 119 of the UTM Act permitted the Presidential Member to make procedural directions requiring the appellant to grant access to the corporate register.[54]

39. The appellant argued that both the rights conferred on an eligible owner and the obligations imposed on the owners corporation by section 119 of the UTM Act are substantive. Accordingly, a dispute about whether the owners corporation had complied with its obligation under section 119 of the UTM Act to provide access was a substantive dispute which could only be determined by the tribunal upon an originating application for orders brought under Part 8 of the UTM Act. Section 119 of the UTM Act did not confer power on the original tribunal to determine it as a procedural issue.[55]

Ground 8 - Did section 119 of the UTM Act confer a right upon the first respondent to access the relevant information?

40. The appellant argued that the original tribunal proceeded on an incorrect construction of section 119 of the UTM Act. Its submissions stated:

The Tribunal below erred to the extent that it construed s 119(4) as conferring on the Tribunal a power to require the appellant to give Ms Davidson access to information in relation to a unit in which the person does not own or does not have an interest in.[56]

41. Further, the appellant argued there was no other basis for the orders sought. The appellant described sections 116, 117, 118 and 119 as the provisions in the UTM Act:

...[which] form a detailed scheme for the circumstances in which a person may access the Unit Plan's corporate register, the process by which they may seek access and the information to which they may have access.[57]

[A] freestanding unqualified right to access the corporate register for any person who is a party to proceedings against a Unit Plan... [58]

43. Section 116(2) of the UTM Act entitled access but only for the limited purpose to facilitate the service of process. The original tribunal observed that:

Ms Davidson's express purpose for wanting access was so she could write to owners in relation to a future general meeting.[59]

44. The appellant submitted that such purpose did not relate to the advancement of these proceedings and therefore section 116 of the UTM Act was of no assistance to Ms Davidson.[60]

45. The first respondent's submissions traversed a broad range of issues and included questions as to whether the owners corporation had failed to meet its legislative responsibilities in various ways and whether it was authorised to incur the cost of these appeal proceedings. Ms Davidson also sought clarification of owners' rights and the procedure for accessing the owners register and asked the Executive Committee to justify certain actions it had taken, or allegedly had failed to take. It can be inferred from the submissions filed by Ms Davidson that she submitted that the Appeal Tribunal should uphold the decision of the original tribunal. In her written submissions[61] Ms Davidson stated: "I request access to the Owners Register".[62]

46. The Appeal Tribunal asked Ms Davidson during the hearing whether she was still keen to pursue the issue of access to the records held by the OC pursuant to the first instance order and she confirmed that she was.[63]

47. The two broad issues for this tribunal to determine were whether the original tribunal made an error of fact or law, and if so whether that error impacted on the decision. Ms Davidson's submissions, insofar as they address these issues, can be summarised as follows:

(a) The owners corporation failed to communicate any problems with Ms Davidson's request to view the Owners' Register.

(b) The owners corporation did not provide Ms Davidson with a reference or a fee request to access the corporate records.[64]

48. In summary, the Appeal Tribunal has concluded that the appellant has not demonstrated that the grounds of appeal other than Ground 8 constitute errors which would affect the result of the first instance proceedings. Ground 8 concerns the interpretation of Part 7 of the UTM Act (particularly section 119) and the definition of 'eligible person' in the Dictionary of the UTM Act. On the Appeal Tribunal's preferred construction of these provisions, the order made at first instance is in error and should be set aside. The orders set out above have therefore been made.

Grounds 1 and 7 - factual findings - payment of fee and request for access

49. The appellant alleged errors of fact and law that the original tribunal made in finding that the first respondent made a request in writing and paid the prescribed fee. The appellant argued that this finding was based on the basis of no evidence.

50. As regards the payment of the prescribed fee, the original tribunal commented that:

...it seemed that this particular owners corporation has not yet decided to impose any fee in relation to requests for access by an owner under section 119.[65]

51. The Appeal Tribunal notes that the representatives of the appellant stated during the hearing on 20 July 2021 that no fee would be prescribed for this particular request as follows:

MS BUCHAN: But we won't prescribe a fee for this particular request being made today.[66]

52. During the appeal, counsel for the appellant argued this was not a true concession and there was some discomfort by the strata manager appearing below when she agreed to what was put to her. The Appeal Tribunal has examined the transcript and considers that a clear concession was made by the appellant in the first instance proceedings. The Appeal Tribunal relies on the following from the transcript of the original proceedings:

PRESIDENTIAL MEMBER: ... Okay, so then the order I'll make will be that the owners corporation is to give to the applicant access to the corporate register forthwith in accordance with section 119 of the Unit Titles (Management ) Act.

Now Ms Stefan and Ms Buchan, I just want to clarify, my understanding is that ... you're not going to turn around in 15 minutes and email Ms Davidson telling her she has to pay a fee.

PRESIDENTIAL MEMBER: Okay because on your understanding there is no fee fixed by the owners' corporation.

PRESIDENTIAL MEMBER: Okay. That's correct from Ms Stefan or Ms Buchan?

PRESIDENTIAL MEMBER: Okay, good... [67]

53. The extract from the transcript shows that that the appellant conceded this point and the Tribunal does not discern any discomfort on the part of the representatives of the appellant in the original proceedings regarding this issue.

54. In the written reasons the original tribunal stated that Ms Davidson had said at the first directions hearing held on 9 June 2021 that she had made a request in writing as required under the UTM Act but that the request had been refused.[68] There was some uncertainty about whether a request had in fact been made by Ms Davidson before the first directions hearing. The communications between the parties about this issue were discussed during the appeal and the Appeal Tribunal ordered that the parties file the email communications that occurred between the first respondent and the appellant in the period 10 and 11 June 2021. These communications were filed on 22 October 2021 and were admitted into evidence in the appeal proceedings.[69]

55. The email communications established that a request for access was made by Ms Davidson on 10 June 2021 in an email which stated: "And request access to the owners registry".[70]

56. Therefore, regardless of whether a request was made prior to the first directions hearing, a request was made before the Interim Application was filed on 15 June 2021.

57. The Appeal Tribunal considers that there was sufficient material before the original tribunal for it to conclude that the factual elements of section 119(4) were established. The appellant has not established an error of fact or law on this ground.

58. The appellant argued that the original tribunal erred by holding that the appellant had the onus of showing that the first respondent had not made a request in writing and paid the prescribed fee.[71] As stated above, the appellant argued that the original tribunal made an error of law by reversing the onus of proof by requiring the appellant to disprove the elements of subsections 119(4) and 119(6) of the UTM Act, the satisfaction of which may give Ms Davidson a remedy. The relevant paragraphs of the reasoning of the original tribunal are as follows:

16. The respondents were unable to provide any submissions focussed specifically on why the applicant was not entitled to access under section 119 of the UTM Act, or why the owners corporation's obligations under section 116 were to be met but those under section 119 ignored. The respondents indicated that their legal advice did not canvas the application of section 119 at all.

17. The respondents did not suggest that the applicant had failed to make a request in written form as required by section 119 of the UTM Act.[72]

59. The Appeal Tribunal agrees that an applicant for relief under section 53 of the ACAT Act must establish that its elements have been satisfied for an order under that provision to be made. The Appeal Tribunal will discuss section 53 of the ACAT Act below. The tribunal is not bound by the rules of evidence, but this is a question of proof not evidence per se. Therefore, the language of the paragraphs in the reasoning appears to reverse the onus of proof because it does not state what the applicant had proved on the interim application and therefore, presumably satisfied the original tribunal sufficiently for it to make the order.

60. However, the findings made by the original tribunal that supported the order based on the elements of section 119 were at least partially based on a concession made by the respondent, as discussed above. The question of whether the reasoning needed to state the express elements of section 53 of the ACAT Act is discussed below. Despite the language appearing to show that the burden of proof was reversed, the Appeal Tribunal considers that broadness of the language was not sufficiently operative to amount to an error of law that would have changed the result in the original proceedings.[73]

61. The Appeal Tribunal concludes that the appellant has not established an operative error of law on this ground.

Grounds 4 and 5 - The mandatory requirements for an interim order were not met

62. The appellant argued that the original tribunal failed to take into account the mandatory requirements for an interim order prescribed by section 53 of the ACAT Act. In particular, the orders were not made for permitted purpose under section 53: to avoid disadvantage or harm to Ms Davidson or to protect her.[74]

63. As stated above, the applicant filed the interim application on 15 June 2021. In her application for interim orders, Ms Davidson stated as follows:

Without access I am unable to contact the other owners as most of the 96 units in the complex are rented.

I ask that I be allowed to have names and emails so that I can make contact to seek and summarise information that may explain the bigger picture.

I am also thinking witness statements from some owners may be helpful.[75]

• 64. The Appeal Tribunal can infer that the original tribunal proceeded under section 53 of the ACAT Act because of the form of the Interim Application. The Interim Application was served on the appellant; therefore, the appellant was aware of the nature of the disadvantage that was alleged by Ms Davidson before the hearing on 20 July 2021. The alleged disadvantage may constitute grounds under section 53(1)(b) ACAT Act for the tribunal to make a discretionary order under section 53(2) to protect the position of Ms Davidson, who had applied for the order. The factors that may be taken into account were considered by the tribunal in Tong v Tong.[76]

65. The original tribunal made no reference to section 53 in the transcript or in the written reasons. There may be some utility when the tribunal is exercising the power under section 53 to expressly state that it is doing so but it is also appropriate for the tribunal to assume that its jurisdiction is triggered by the Interim Application and proceed to make a decision forthwith after properly consulting with the parties. Overall, the tribunal is under a clear obligation for its procedures to be as simple, quick, inexpensive and informal as is consistent with achieving justice. This obligation is stated in section 7 of the ACAT Act and on the Interim Application form itself.

66. In the alternative, the Appeal Tribunal considers that the original tribunal in the present case made a substantive rather than procedural order, therefore the requirements of section 53 of the ACAT Act were probably ancillary to the order. The substantive nature of the order made will be traversed below.

67. In any case, the Appeal Tribunal considers that the procedure adopted by the original tribunal regarding section 53 of the ACAT Act was not sufficiently operative to amount to an error of law that would have changed the result in the original proceedings.[77]

68. The Appeal Tribunal concludes that the appellant has not established an operative error of law on this ground.

Ground 3 - procedural fairness when deciding the Interim Application at its first return

69. Regarding the arguments made by the appellant that the original tribunal denied it procedural fairness by proceeding to hear the interim application at its first return, the Appeal Tribunal notes that the original tribunal explained what had occurred at the directions hearing held on 9 June as follows:

11. Having looked at the provisions, the representatives for the respondents were not able to explain the legal reasoning which led to the conclusion that the applicant was not entitled to access the corporate register under section 119. I suggested the owners corporation take further legal advice, with particular reference to section 119 and section 121 and liaise with the applicant about meeting her outstanding request.

12. I advised the parties that if the matter remained unresolved, the applicant could apply to the ACAT to seek orders for access, as part of the current application.

13. It transpired that the respondents did not give the applicant access to the corporate register, and on 15 June 2021 the applicant lodged an interim or other orders application seeking urgent orders for access to the corporate register. That application was listed before me on 20 July 2021.[78]

70. Based on this description of the events, the Appeal Tribunal has concluded that the appellant had notice that the applicant might make an application under section 53 of the ACAT Act and that if she did, the Presidential Member would consider it in the context of section 119 of the UTM Act. Further, the appellant had adequate time to prepare for the hearing on 20 July 2021, given that five weeks transpired between the filing of the Interim Application on 15 June 2021 and the hearing on 20 July 2021.

71. During the hearing of the Interim Application on 20 July 2021 the OC requested that the Presidential Member delay making orders for the applicant to be given access to the corporate register so the owners corporation could write to all owners and invite them to update their details. The original tribunal declined to hold off making orders for two reasons as follows:

(a) the respondents had notice since the first directions hearing on 9 June 2021 of the relevant provisions, and that these orders were likely to be made if the owners corporation continued to refuse access; and

(b) a delay in making orders would have no effect on the owners corporation's continuing obligation to comply with section 119 and the potential for criminal sanction under section 121.[79]

72. The appellant correctly notes the obligation of the tribunal to observe natural justice and procedural fairness when dealing with an application for interim orders. The note to section 53(2) states this proposition and points the reader to section 7 of the ACAT Act. Section 7 of the ACAT Act is set out above. An important relevant subsection in that provision states the concept of proportionality in section 7(a)(ii). This provision was notified on 9 June 2021, becoming effective on 16 June 2021, therefore applied to the hearing held on 20 July 2021. Proportionality recognises that parties do not have unlimited access to the resources in the civil justice system provided that the relevant court or tribunal respects their 'opportunity to be heard'.[80]

73. The Appeal Tribunal considers that the original tribunal gave adequate notice to the appellant that the Presidential Member would deal with the matter under section 119 of the UTM Act at the hearing on 20 July 2021, if the issue remained unresolved. The fact that Presidential Member did so was consistent with her obligations under sections 7 and 53 of the ACAT Act.

74. The Appeal Tribunal is not satisfied that the appellant has established an error of law on this ground.

Ground 2 - order was substantive and could not be determined on a procedural basis

75. On this ground, the appellant argued that the orders made on 20 July 2021 were substantive orders which were designed to resolve a substantive dispute between the parties and therefore could not form part of the procedural orders made by the original tribunal on that date. The appellant argued that original tribunal considered that section 119 permitted it to make procedural directions requiring the appellant to grant access to its corporate register.

76. The appellant argued in its written submissions that section 119 of the UTM Act does not add to the armoury of powers that can be exercised by the tribunal in the course of its practice and procedure. The appellant further argued that section 119(4) confers a substantive right on eligible persons to inspect the records of an owners corporation. Conversely, it imposes a substantive obligation on the owners corporation to facilitate inspection. If the tribunal were to make orders to compel performance in accordance with section 119(4) of the UTM Act, that can only arise once a dispute is referred to the tribunal pursuant to part 8 of the UTM Act. The appellant further argued that if the original tribunal purported to rely on section 119 of the UTM Act to make procedural directions, then it misconstrued the import of section 119.[81]

77. During the hearing, counsel for the appellant emphasised the importance of the substantive nature of the orders that had been made, for example, noting that the first respondent sought the information for future meetings of the OC.[82] To emphasise the point, the application in UT 12/2021 (that was filed on 7 May 2021 and concluded by orders made by the Senior Member on 25 August 2021) concerned a decision by the Executive Committee of the OC to accept a quotation for windows that had been replaced by the first respondent. The appellant did not appeal the orders made by the Senior Member on 25 August 2021, rather it argued that the order made by the Presidential Member on 20 July 2021 should be set aside on appeal.

78. Substantive orders may operate independently of the proceedings from which they emanate, in this case the UT 12/2021 proceedings. Therefore, on this argument, the Access Order (as a substantive order) would continue after the UT 12/2021 proceedings were concluded by the orders made on 25 August 2021. There are two aspects to this ground of appeal. First, whether the Access Order was substantive or procedural. Second, whether the Access Order was final as opposed to interlocutory. The two aspects tend to overlap conceptually in the case law.

79. During the appeal hearing, the Appeal Tribunal quizzed counsel for the appellant at length in order to be satisfied that the order made by the Presidential Member on 20 July 2021 could be properly characterised as substantive rather than procedural or final as opposed to interlocutory.[83] Dealing first with the question of whether the order was final or interlocutory, this is relevant because the tribunal will generally regard appeals from interlocutory (as opposed to final) decisions as incompetent. The authority of GP v Mackenzie[84] (GP) assists the Tribunal in deciding whether the order in the present case is final. In GP, Presidential Member Symons stated that it is necessary to look at the legal effect of the orders, relying upon statements by Murrell CJ in Piscioneri v Reardon:[85] "[t]he question is whether the consequence of the order, as made, finally determine the rights of the parties in a principal cause of action". The legal effect in the present case is that the original tribunal ordered the appellant to give access to the corporate register under section 119(4) of the UTM Act. The operation of the order made on 20 July 2021 means that it may be characterised as final because its legal effect is not precluded by the orders made by the Senior Member on 25 August 2021. The appellant argued that the Access Order was final because it addressed a very different question to the question that arose in the original application, which was about the windows.

80. The order of 20 July 2021 concerns the right of the applicant to obtain information in order to advocate in respect of a future meeting of the OC. Counsel for the applicant argued that there was a separate determination or a separate question that was determined with finality and this question did not deal with the practice or procedure of the tribunal.

81. Shifting into the paradigm of substantive versus procedural orders, counsel for the appellant contrasted the order under appeal with procedural orders e.g., an order for discovery.[86] So, in effect, the order made on 20 July 2021 had an independent juridical operation to the orders that concluded the proceedings in UT 12/2021. The appellant argued that proper way that this should have been dealt with was to amend the unit titles application to seek access to the corporate register under section 119. The amendment would have allowed the question about access to the corporate register to operate as the equivalent of a separate cause of action. This interpretation is buttressed by the statements made by the original tribunal regarding the potential criminal liability of the OC under section 121 of the UTM Act if there was a failure by it to comply with the Access Order.

82. The Appeal Tribunal agrees with the appellant's analysis of the nature of the order. However, the line between procedural and substantive or final and interlocutory issues is nuanced. To summarise the points made above, the Tribunal considers that the order that was made by the original tribunal was final and substantive. An interlocutory and/or procedural order may have merged in the result in UT 12/2021, but in this case the order made by the original tribunal on 20 July 2021 operates and continues to operate independently of the orders made by the Senior Member finalising proceedings in that case on 25 August 2021.

83. The classification of the order is only relevant if the classification would affect the result in the original proceedings. In this case the Appeal Tribunal has concluded that it would have affected the result in the original proceedings, and it is necessary to set aside the order of the original tribunal because the Appeal Tribunal respectfully considers that it is based on an incorrect construction of section 119 of the UTM Act. This is discussed below regarding Ground 8 of the appeal.

Ground 8 - Did section 119 confer a right upon the first respondent to access the relevant information?

84. On this ground the appellant argued that the original tribunal erred by holding that section 119 of the UTM Act conferred on the first respondent a right to access information in relation to a unit in which the first respondent did not own or have an interest in.

85. The appellant's submissions stated as follows:

[Section 119 of the UTM Act] provides that only an "eligible person" can inspect the records of an owners corporation. The Dictionary to the UTMA provides that "eligible person", for a unit or common property in relation to which access to information is required, means the owner, or another person with an interest in the unit, or in an easement over the common property or anyone authorised in writing by that person.

An owner cannot obtain access to information in relation to a unit which the person does not own or does not have an interest in...

...The Tribunal below erred to the extent that it construed s 119(4) as conferring on the Tribunal a power to require the appellant to give Ms Davidson access to information in relation to a unit in which the person does not own or does not have an interest in.[87] [emphasis in original]

86. In discerning whether an error of law has occurred, the Appeal Tribunal must interpret section 119(4) in the context of the UTM Act, particularly Part 7 of the UTM Act. The Tribunal follows the statement made by Murrell CJ about the approach that should be adopted in the ACT in Legal Practitioner P1 v ACT Civil and Administrative Tribunal:

... [T]he starting point is a consideration of the text of the legislation ...

In order to understand the meaning of statutory text it may be necessary to consider the context of the provision in question, including the legislative context and the general purpose and policy of the provision... [emphasis added]

Chapter 14 of the Legislation Act... provides guidance about the interpretation of Acts, but it is not intended to be a comprehensive statement of the law of interpretation as it affects ACT Acts and it assumes that the common law presumptions operate in conjunction with the Legislation Act: s 137. Section 139 of the Legislation Act reflects the common law and requires that, when resolving an ambiguous or obscure provision of an Act, preference be given to the interpretation that would best achieve the purpose of the relevant Act.[88]

87. This statement is consistent with comments made by the High Court in SZTAL v Minister for Immigration and Border Protection (SZTAL).[89] In essence, the Tribunal must consider text, context and purpose when interpreting the relevant provisions.[90]

88. When considering the text of section 119(4), it appears to give the first respondent carte blanche to information held by the OC on the corporate register. However, when one considers the context and in particular Part 7 of the UTM Act, a different interpretation emerges. The Appeal Tribunal agrees with the argument made by the appellant that Part 7 of the UTM Act provides a:

detailed scheme which sets out the circumstances in which a person may access the corporate register held by the relevant OC.[91]

89. In this respect, the tribunal quotes the written submissions of the appellant as follows:

Section 116, together with s 117 (Names and addresses of executive members), s 118 (Insurance information), s 119 (Unit title certificate and access to owners corporation records) form a detailed scheme for the circumstances in which a person may access the Unit Plan's corporate register, the process by which they may seek access and the information to which they may have access.[92]

90. Therefore, what appears to be an 'open slather' interpretation that rests upon the text of section 119(4) read in the context of Part 7 of the UTM Act, the Tribunal agrees with the appellant's arguments that the relational words in the definition of 'eligible person' in the Dictionary to the UTM Act are critical. Reading the definition of 'eligible person' alongside section 119(4), the Tribunal concurs with the appellant's interpretation that section 119(4) does not provide a freestanding right for any owner to obtain all information. The information that the owner may obtain are those in relation to their unit or the common property.[93] This would not entitle the first respondent to have access to the contact details of the unit holders on the corporate register at large, only information that is relevant to the first respondent's unit or the common property.

91. This was the construction that was preferred by Senior Member Orr in Leonard v Michie[94] where the Senior Member found that section 119 contains substantive limitations on the right to access and that:

...a person can only get access to information in relation to a unit which the person owns or has an interest in...[; and]

...the owner, or another person with an interest in the unit, can have access to information in relation to the common property.[95]

92. These limitations were reiterated by the Senior Member when he described the rights provided by what is now section 119(4) as follows:

Subject to these limitations, the applicants have a right to inspect the records of the corporation in relation to their units and the common property. [emphasis added][96]

93. The original tribunal did not address the question of whether the applicant was an 'eligible person' for the purposes of section 119: the issue was not raised by either party.

94. When the operation of the limiting words in the definition of 'eligible person' in the Dictionary of the UTM Act is considered alongside a reading of section 119 of the UTM Act, the Tribunal concludes that section 119 does not confer on the first respondent a right to access information in relation to a unit which the first respondent did not own or have an interest in. This is sufficient to set aside the order that was made by the original tribunal under section 119(4) because the information sought (and potentially caught by the order) are the contact details of all the unit holders on the corporate register. In the view of the Appeal Tribunal, this goes further than the legislation provides.

95. The appellant's arguments went further, arguing that the note in section 116(2) supported a proposition that the power in section 119(4) was confined to enabling the applicant to comply with the requirements of service under the UTM Act. The original tribunal expressly stated that section 116 was not relevant to the determination of the Interim Application. It is therefore not necessary for the Appeal Tribunal to respond to these further arguments.

96. The Tribunal emphasises that its reading of the provisions of Part 7 of the UTM Act and the Dictionary is the preferred construction of those provisions, taking into account the context of the provisions in the UTM Act and the interpretation adopted in Leonard v Michie.[97] Therefore, the construction adopted by the original tribunal constitutes an error of law so the order made on 20 July 2021 will be set aside. However, the construction adopted by the original tribunal was not outlandish and flows from the text of section 119 as it is currently drafted. The Appeal Tribunal has therefore recommended below that the Attorney-General consider a re-draft of Part 7 of the UTM Act. The provisions are sufficiently beset by infelicities to amount to a systemic problem that should be considered by the Attorney.

97. The Appeal Tribunal agrees with the comments made by Senior Member Orr in Leonard v Michie that the combination of Part 7 of the UTM Act with the definition of 'eligible person' in the Dictionary of the UTM Act make these provisions "difficult ... to understand"[98] and "ambigu[ou]s".[99] The Tribunal calls upon the Attorney-General to amend Part 7 to clarify the regime for access to information under Part 7 of the UTM Act. The New South Wales legislation contains provisions that may be readily considered.[100]

98. Senior Member Orr referred to the UTM Act as embodying certain important democratic principles.[101] The Appeal Tribunal considers that amending Part 7 UTM Act to provide a clear set of guidelines for access to information should be prioritised and the Tribunal will advise the President accordingly pursuant to section 105A of the ACAT Act.

Application for costs under section 48 of the ACAT Act

99. During the appeal, the appellant made an application for costs pursuant to section 48(2) of the ACAT Act. This provision, which is set out above, states that if tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant:

(i) the filing fee for the application; and

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

100. In this case, the appellant is the relevant applicant with respect to the operation of this provision.

101. The Appeal Tribunal has decided the application in favour of the appellant by setting aside the relevant first instance order. During the appeal hearing Ms Steffen, on behalf of the appellant, advised that the appellants had paid $1,186 for the appeal filing fee and $505.75 for ordering the transcript. The Appeal Tribunal considers that the transcript fee is necessary under section 48(2) of the ACAT Act because it was necessary to obtain a transcript to properly scrutinise the first instance decision.

102. The Appeal Tribunal therefore orders the first respondent is to pay the appellant a total of $1,691.75 within 28 days of the date of this decision.

103. As stated above, the Appeal Tribunal has concluded that the appellant has not demonstrated that the grounds of appeal other than Ground 8 constitute errors which would affect the result of the first instance proceedings. Ground 8 concerns the interpretation of Part 7 of the UTM Act (particularly section 119) and the definition of 'eligible person' in the Dictionary of the UTM Act. On the Appeal Tribunal's preferred construction of these provisions, the order made at first instance is in error and should be set aside. The appeal is therefore upheld.

104. Given that the Appeal Tribunal has decided the appeal in favour of the appellant, the Appeal Tribunal has ordered the first respondent to pay the appellant costs of $1,691.75 (comprising the appeal filing fee and the transcript fee) within 28 days.

[1] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76

[2] [2021] ACAT 116 at [6]- [10]

[3] [2021] ACAT 103

[4] [2021] ACAT 37 at [4]

[5] [2016] ACTSC 275 at [29]- [39]

[7] [2011] ACTSC 207 at [52]

[8] [2021] ACAT 103 at [5]

[9] [2021] ACAT 37 at [4]

[10] [2018] ACAT 4

[11] [2013] ACTSC 219 at [13]

[12] B & T Constructions at [13] ff

[14] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [4]

[15] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [4]

[16] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [4]

[17] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [5]

[18] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [11]

[19] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [13]

[20] Applicant's application for interim or other orders dated 15 June 2021

[21] Applicant's application for interim or other orders dated 15 June 2021, page 1

[22] This order is also referred to as the 'order made ... on 20 July 2021' in this decision. The parties' submissions in the appeal refer to 'orders' made on 20 July 2021, so the Appeal Tribunal has adopted this terminology as necessary but note for the purpose of clarity that only one order was made on 20 July 2021, which is quoted above.

[23] Application for appeal dated 22 July 2021

[24] Amended application for appeal dated 26 August 2021

[25] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76

[26] Transcript of proceedings 20 July 2021

[27] Transcript of proceedings 20 July 2021, page 3

[28] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [16]

[29] Transcript of proceedings 20 July 2021, pages 3, 5

[30] Transcript of proceedings 20 July 2021, page 3

[31] Transcript of proceedings 20 July 2021, page 5

[32] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[33] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[34] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [18] ff

[35] UTMA Act, Dictionary, def 'eligible person'

[36] Appellant's List of Errors dated 26 August 2021

[37] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [27]

[38] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[39] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [27]

[40] Transcript of proceedings 29 October 2021, page 11, lines 8-18

[41] Appellant's submissions dated 26 August 2021 at [29]

[42] Appellant's submissions dated 26 August 2021 at [24]

[43] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [27]

[44] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [27]

[45] Appellant's list of errors dated 26 August 2021 at [2], [7]

[46] That is, Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [27]

[47] Appellant's submissions dated 26 August 2021 at [33]

[48] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[49] Transcript of proceedings 20 July 2021, pages 13-14

[50] Appellant's submissions dated 26 August 2021 at [26]

[51] Appellant's submissions dated 26 August 2021 at [27]

[52] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[53] Appellant's submissions dated 26 August 2021 at [34], [35]

[54] Appellant's submissions dated 26 August 2021 at [18]

[55] Appellant's submissions dated 26 August 2021 at [19]

[56] Appellant's submissions dated 26 August 2021 at [51]

[57] Appellant's submissions dated 26 August 2021 at [58]

[58] Appellant's submissions dated 26 August 2021 at [62]

[59] Appellant's submissions dated 26 August 2021 at [63]

[60] Appellant's submissions dated 26 August 2021 at [65]

[61] First Respondent's submissions dated 30 August 2021

[62] First Respondent's submissions dated 30 August 2021, page 1

[63] Transcript of proceedings 29 October 2021, page 14

[64] First respondent's submissions dated 30 August 2021

[65] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[66] Transcript of proceedings 20 July 2021, page 13, line 41-42

[67] Transcript of proceedings 20 July 2021, page 14, lines 20-41

[68] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [4]

[69] Exhibit A1 - Email correspondence between Marion Davidson and Deanna Buchan dated 3 June 2020, 10 June 2021 and 11 June 2021

[70] Exhibit A1 - Email correspondence between Marion Davidson and Deanna Buchan dated 3 June 2020, 10 June 2021 and 11 June 2021, page 1

[71] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [17]

[72] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [16]- [17]

[73] Tam v Du [2019] ACAT 94 at [22]

[74] Appellant's submissions dated 26 August 2021 at [34], [35]

[75] Applicant's application for interim or other orders in UT 12/2021 dated 15 June 2021, page 2

[76] [2021] ACAT 8

[77] Tam v Du [2019] ACAT 94 at [22]

[78] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [11]- [13]

[79] Davidson v The Owners - Units Plan No 1475 & Anor [2021] ACAT 76 at [26]

[80] UBS AG v Tyne [2018] HCA 45 where the High Court upheld a finding of abuse of process to stay proceedings based on the idea that the applicant had exhausted their 'opportunity to be heard'. There is further development of this in Clayton v Bant [2020] HCA 44 as discussed in Bailey v Bottrill [2021] ACAT 103 at [75] ff.

[81] Appellant's submissions dated 26 August 2021 at [20]

[82] Transcript of proceedings 29 October 2021, page 20

[83] Transcript of proceedings 29 October 2021, pages 12-14

[84] GP v Mackenzie [2018] ACAT 96

[85] [2016] ACTCA 33 at [33]- [34]; quoted in GP v Mackenzie [2018] ACAT 96 at [49]

[86] Transcript of proceedings 29 October 2021, page 14

[87] Appellant's submissions dated 26 August 2021 at [46]-[51]

[88]Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173 at [19]- [21]

[89] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

[90] Lisa Burton Crawford and Dan Meagher, 'Statutory Precedents under the "Modern Approach" to Statutory Interpretation' [2020] SydLawRw 10; (2020) 42(2) Sydney Law Review 209, 209, citing SZTAL

[91] Appellant's submissions dated 26 August 2021 at [58]

[92] Appellant's submissions dated 26 August 2021 at [58]

[93] Appellant's submissions dated 26 August 2021 at [48]

[94] Leonard v Michie [2019] ACAT 14 at [205]

[95] Leonard v Michie [2019] ACAT 14 at [205]

[96] Leonard v Michie [2019] ACAT 14 at [206]

[97] Leonard v Michie [2019] ACAT 14

[98] Leonard v Michie [2019] ACAT 14 at [205]

[99] Leonard v Michie [2019] ACAT 14 at [205]

[100] For example, Strata Schemes Management Act 2015 (NSW) sections 182-183

[101] Leonard v Michie [2019] ACAT 14 at [1]