The applicant sought an order from ACAT that the owners corporation issue a rule infringement notice for various alleged breaches of House Rules and rules of the owners corporation.
In response, ACAT held that there is no general power in section 129 of the UTMA to order the executive committee or the owners corporation to exercise powers or functions that it is not otherwise authorised to exercise.
However, ACAT also noted that this did not mean that ACAT is completely devoid of powers to deal with rule infringement notices, only that there are certain processes that must be followed before such matters can come before ACAT.
Further, section 129(1)(g) of the UTMA provides that ACAT may make an order giving effect to an unsuccessful motion for a resolution of a general meeting if ACAT is satisfied, after a merits review, that opposition to the motion was unreasonable. Ms Martin was entitled to put a motion to a general meeting asking the owners corporation to issue a rule infringement notice. Had that motion been unsuccessful, Ms Martin would then have been entitled to seek a review of that motion in ACAT. However, that option was not open to her as no motion had been put.
Finally, given the weight given to the right of owners corporations to manage their affairs along democratic lines, ACAT observed that Ms Martin attempted to circumvent these democratic processes by simply asking ACAT to step into the shoes of the representative bodies and order that a rule infringement notice be issued. To allow this kind of process would mean it would be easier for aggrieved residents to come directly to ACAT for a rule infringement notice or other remedy, rather than it would be to put forward a resolution seeking authorisation through the body corporate, and then seeking a merits review if necessary. This would undermine the democratic, self-governing approach to the management of unit corporations.