The applicant appealed against the decision in Brudenall v The Owners Corporation of Units Plan No 202 (Unit Titles) [2018] ACAT 113, alleging 10 errors of fact and law.

The Appeal Tribunal accepted that the Original Tribunal erred in fact by stating that the word ‘maintain’ was included in the wording of motion 5, while the word ‘repairs’ was the actual word used. The appellant argued that this misquotation led the Original Tribunal to also err in its conclusion as to the meaning of motion 5. The argument was that the concept of maintenance under the legislation combines the concepts of repair, replacement, renewal and restoration, and ‘repair’ is a subset of maintenance distinct from any of the other three concepts, particularly that of ‘replacement’. Therefore, the appellant argued that the proper interpretation of motion 5 is that the owners corporation should be responsible for ‘roofing repairs’.

The Appeal Tribunal did not interpret the phrase in motion 5 “to be responsible to paint all buildings on the Class B units and to carry out roofing and structural repairs” in the same way as either the Original Tribunal or the appellant. Instead, after considering the statutory and factual context within the motion came to be passed, the Appeal Tribunal was of the view that what was being authorized by motion 5 were three distinct types of maintenance on the Class B units: (a) To paint all buildings (but not internal painting); (b) To carry out roofing; and (c) To carry out structural repairs (but not minor repairs).

In other words, the term ‘roofing’ in motion 5 authorized the executive committee to find and implement the most appropriate manner of maintaining the roof, including by way of roofing with a new Colorbond roofing system. The Appeal Tribunal also noted that even if the word ‘roofing’ should be read as ‘roofing repairs’, it should be interpreted to include removal and replacement of the roof, as the definition of ‘maintenance’ in the legislation is inclusive and does not specify or require that the subordinate words are mutually exclusive.

Consequently, while the Original Tribunal erred in its description and interpretation of motion 5, the error was not material to the outcome as a different in approach in interpretation would reach the same result.

In addressing the other alleged errors, the Appeal Tribunal made some general comments on the concept of maintenance. The Tribunal commented that there is a broad consensus that ‘maintenance’ can include preventative maintenance, before property has fallen into disrepair. An improvement in functionality when undertaking maintenance, due to improvements in materials or construction techniques is also permissible, however there is no obligation on an owners corporation to provide as maintenance an improved functionality that did not previously exist.

In conclusion, the Appeal Tribunal agreed with the original Tribunal that the work undertaken in this case constituted maintenance, albeit with some improved functionality.