The owners corporation appealed a number of aspects of the original decision. The appeal was dealt with as a review under section 82(b) of the ACAT Act and the owners corporation needed to establish an error of fact or law in the original decision in order to succeed. The exercise of some of the powers of the original tribunal under the UTMA were discretionary (see especially section 129). In an appeal in relation to the exercise of such discretionary powers, it is necessary for the appeal tribunal to be of the view that the exercise was clearly wrong because of material errors.
The appeal tribunal held that where there is a rule infringement notice, and the owners corporation seeks to enforce that notice under section 109, the owners corporation can also seek to have the underlying dispute resolved under sections 125 and 129 of the UTMA. Sections 125 and 129 are very general and of broad application and the purpose of the UTMA includes “to assist in the resolution of disputes in relation to the management of unit plans” (section 6(c)) and this suggests that the range of mechanisms to do so are generally available.
The next question was whether the dispute should be resolved by making the orders sought under section 129. Ultimately the appeal tribunal held that the orders sought by the owners corporation to comply with the recommendations of the fire expert in relation to the fire rules (in relation to his unit property) were warranted. The fact that the use of the unit was in breach of the Default Rules also supported the making of those orders.