CORBY v THE OWNERS CORPORATION – UNITS PLAN NO 1035 (Unit Titles) [2019] ACAT 45

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

Member: Senior Member R Orr QC
Date of Decision/ Orders: 8 May 2019

FACTS

On 11 April 2018 the executive committee for the owners corporation of Units Plan No 1035 (the Respondent) convened a meeting to discuss the lack of visitor car parking. The executive committee unanimously resolved to convert a space of common property adjacent to unit 13 into visitor car parking.

Ms Corby (the Applicant), who purchased unit 13 in 2001, had consistently used this area of common property as her own parking spot. It was the Applicant’s understanding that the space was her car park.

On 26 July 2018, a contractor attended the site of the designated visitor car parking spot to complete the works. The contractor commented to the Applicant that this was a strange place to put the visitor parking spot as it was likely to impede the Applicant’s access to her driveway. The contractor then left to obtain clarification from the executive committee. This was the first time the Applicant learned about the plans to convert the space into visitor parking.

On 7 August 2018, the contractor returned to complete the works. The Applicant approached the contractor and stood in the space. The Applicant enquired as to what would happen if she did not move out of the space. The contractor said he would not be able to continue and decided to cease working.

Shortly following these events the executive committee served on the Applicant a rule infringement notice under rule 5 of the units plan rules (the Rules), which stated:

5. Use of common property
   “A unit owner must not use the common property or permit it to be used, to interfere unreasonably with the use and enjoyment of the property by an owner, occupier or user of another unit.”

The executive committee also issued the Applicant with an invoice for $649 for the costs associated with the rule infringement notice which was made up of the costs associated with the contractor attending as well as the legal and administrative costs of the executive committee.

The matter proceeded to a hearing before the ACT Civil & Administrative Tribunal in relation to the issuing of the rule infringement notice only. The matter of the visitor car parking space was not in dispute in these proceedings. The following decision was made.

DECISION

The Tribunal found that there was no basis for a reasonable belief that rule 5 had been breached and therefore no basis for issuing the rule infringement notice.

The invoice was issued by the Respondent on the basis that there was a statutory debt arising from a breach of the Rules for the costs incurred in issuing the rule infringement notice.

The Tribunal found that there was no such breach nor any basis to support the statutory debt.

The Senior Member criticised the conduct of the executive committee for failing to inform the Applicant of the plans to convert her parking space into visitor parking or the plans to serve a rule infringement notice on her.

The Senior Member commented that the Applicant uses a walker and a portable oxygen cylinder and that due to her ongoing medical issues ambulance and portable trolley access to unit 13 are required at all times. On this basis at the very least the Applicant’s disability was relevant to the decision by the executive committee to issue the rule infringement notice and therefore should have been taken into account.

The Tribunal repealed the rule infringement notice and the resolution of the executive committee to recover the purported debt.