Commission of Strata Corporation v Strata Appeals Tribunal

• Jurisdiction: Jamaica
• Judge: Cresencia Brown Beckford, J
• Judgment Date: 29 March 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013 HCV 06024
• Date: 29 March 2019

[2019] JMSC Civ 223

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2013 HCV 06024

Between

Commission of Strata Corporation

Claimant

and

Strata Appeals Tribunal

Defendant

IN CHAMBERS

Mr. Stuart Stimpson and Mr. Hadrian Christie instructed by Hart, Muirhead and Fatta for the Claimant

Miss Carla Thomas and Miss Shaniel Hunter instructed by Director of State Proceedings for the Defendant

Mr. Douglas Leys Q.C.and Mr. Kenik Brisset instructed by LeySmith Attorneys-At-Law for the Interested Party

Judicial Review — Right to a fair hearing — Duty to give reasons — Right to be heard orally — Right to be present

Cresencia Brown Beckford, J

APOLOGY

1 There has been a significant delay in the delivery of this judgment for which I accept total responsibility. I crave your kindness and generosity to accept my apologies.

INTRODUCTION

2 A complaint was made by the Interested Party, Ms. Heather Urquhart (hereinafter referred to as the “Complainant”) to the Commission of Strata Corporation (hereinafter called the “Commission”). The Commission subsequently made certain orders, one of which had adverse implications for the Complainant. Aggrieved, she appealed to the Strata Appeals Tribunal (hereinafter called the “Tribunal”) on the ground that she had not been afforded a hearing. The Tribunal found that that the Complainant had not been afforded a fair hearing and quashed the Order of the Commission.

3 The Commission has now applied for Judicial Review of the Tribunal's decision and for an Order of certiorari, quashing the decisions of the Tribunal made on August 2, 2013 in the Appeal. The court declines to exercise its discretion to quash the Orders of the Tribunal.

CHRONOLOGICAL BACKGROUND

4 The Complainant is the owner of Strata Lot #2 in the Proprietors Strata Plan (PSP) # 528. Lot #1 is owned by Mrs Melody Cammock-Gayle. There are only two strata lots in this strata plan. PSP #528 is part of a larger development known as Timbers of Worthington.

5 The Complainant made several complaints to the Commission. The relevant complaints are as follows:

• i. Mrs. Melody Cammock-Gayle was using her unit for the operation of a business in contravention of the Registration (Strata Titles) Act.

• ii. The building on Strata Lot #1 encroached into the common area of PSP #528 by 11 feet.

• iii. The concrete structure with conduit for Jamaica Public Service (JPS) meters encroached on the common area of PSP #528. These included not only the 2 meters for Lots #1 and #2 of PSP #528 but an additional 7 meters in Timbers of Worthington.

• iv. Letter and Meter Boxes for the 25 units in Timbers of Worthington were encroaching on the common area of PSP #528.

6 Pursuant to section 3B(c) of the Registration (Strata Titles) (Amendment) Act 2009 1, she made an application for Dispute Resolution and Order in relation to these complaints to the Commission of Strata Corporations.

7 A meeting was scheduled for 10 ^th of October 2012 between the Complainant and Mrs. Cammock-Gayle. The Complainant and her Attorney were present, however, Mrs. Cammock-Gayle was absent. It was not clear whether Mrs Cammock-Gayle received notification of this meeting. The meeting was rescheduled to 23 ^rd October 2012 and the Complainant gave further particulars of Mrs. Cammock-Gayle to ensure her notification.

8 On the 23 ^rd October 2012, it appears that the meeting was postponed due to the imminent arrival of hurricane Sandy. The matter was then referred by the

Inspectorate Commission of Strata Corporation to the Legal Committee by way of a report, requesting that the Legal Committee instruct the Commission on how to deal with the matter of the encroachment. This appears to have been communicated to the Complainant by way of email. A meeting was fixed for the 6 ^th of November 2012. It does not appear that the Complainant expected to attend this meeting as she forwarded a letter for deliberation by the Legal Committee. The Complainant was thereafter notified that the Legal Committee meeting had been postponed to 13 ^th November, 2012. The correspondence to the Complainant does not indicate the reason for the postponement. It however appears to be in response to communication sent from the Complainant referencing a scheduled meeting of the Legal Committee on the 6 ^th of November 2012

9 The Legal Committee met on the 13 ^th of November 2012, extracts of the minutes of the meeting showed it considered the application for Dispute Resolution and order and that the Legal Committee advised the Commission to make the following Orders inter alia:

• i. that PSP #528 demolish the letter and meter boxes and the owner of strata lot #1 remove the encroachment in the common area.

• ii. The cost involved for removal of the letter and meter boxes should be borne by all the proprietors who have letter and meter boxes located on PSP #528.

• iii. That the owner of strata lot #1 was to cease the illegal use of her strata lot for commercial purposes.

10 These recommendations were apparently accepted by the Commission without demur. There is no indication that the Commission met to discuss these recommendations.

11 By way of letter dated 14 ^th November 2012, the Complainant was advised that the Legal Committee to the Commission had recommended that the Commission issue an order for the removal of the letter and meter boxes from the common area of PSP #528 and that the costs associated with the removal and relocation be borne by PSP #528.

12 The Complainant, aggrieved by these Orders, appealed to the Tribunal on the grounds, inter alia, that:

• 1. The Commission acted in breach of the rules of natural justice by not affording the [Complainant] an opportunity to be heard either by the Legal Sub-Committee of the Commission or the Commission itself before coming to its decision to order Strata Plan #528 to remove and relocate the letter and meter boxes from the common area.

• 5 The finding of fact that the concrete structures containing the letter and meter boxes belonging to the owner of PSP 528 was illegal, was unreasonable and could not be supported in light of the evidence which the [Complainant] would have presented had she been given an opportunity to be heard.

13 The Tribunal ruled that having heard the appeal against the decision of the Commission contained in the letter dated 14 ^th November, 2012 the costs associated with the removal and relocation of the letter and meter boxes are to be borne by PSP 528. The Commission acted in breach of the rules of natural justice by not allowing the appellant an opportunity to be heard orally. She had a reasonable expectation of being allowed to be present at the determination of the matter having been kept informed of the various dates of the hearing prior to the actual date of the hearing and that the decision of the Commission was nullified.

14 Being aggrieved by the decision of the Tribunal, the Commission has applied for Judicial Review of the Tribunal's decision as follows:

THE CLAIMANT SEEKS AGAINST THE DEFENDANT FOR:

• 1. “An order of certiorari, quashing the decision of the Tribunal made on August 2, 2013 in the Appeal;

• 2. Costs to the Claimant with Special Certificate for two (2) Counsels; and

• 3. Such other remedies as this Honourable Court may see fit.

  THE CLAIMANT SEEKS THE RELIEFS ABOVE ON THE FOLLOWING GROUNDS THAT:

  • a. The decisions of the Tribunal were made without jurisdiction, as Ms. Urquhart was not aggrieved person entitled to invoke its jurisdiction. Its decision was therefore ultra vires and a nullity.

  • b. The Tribunal failed to give any or any adequate reasons for its decisions.

  • c. The Tribunal patently erred in law based in the facts before it, as the Commission heard Ms. Urquhart's complaint.”

ISSUES

15 The issues for adjudication arising are:

• (a) Whether the Tribunal was required to give any or sufficient reasons for its decision.

• (b) Whether or not the Interested Party was entitled to a hearing;

• (c) Whether the Commission heard the Interested Party; and

• (d) Whether the Interested Party/Complainant was entitled to be heard before the order adverse to her was made.

THE CLAIMANT'S SUBMISSIONS

A. JURISDICTION

16 The Claimant abandoned at the hearing the issue of jurisdiction and conceded that the Complainant was an aggrieved person entitled to invoke the jurisdiction of the Tribunal.

B. REASONS

17 It was accepted that there is no general duty for the Tribunal to give reasons for its decisions. However, the law now trends towards increasingly recognising the duty to give reasons especially since the reasons will assist the parties in determining whether there was any error of law in the decision-making process.

18 To support this contention, Counsel relied on the cases of R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242, R v Secretary of State for Trade and Industry ex parte Lonrho Plc [1989] 1 WLR 525 and Padfield v Minister of Agricultural Fisheries and Food [1968] AC 997. These cases all highlight the court's willingness to a support the giving of reasons in an effort to promote fairness and transparency of the decision- making process.

19 It was submitted that the Tribunal's pronouncement on the date of the hearing was vague and unintelligible. It is unclear how the Tribunal arrived at this decision. In the circumstances the court is being asked to quash the decision of the Tribunal.

C. FAIR HEARING

20 Counsel noted that while the Tribunal is obliged to give a party the opportunity to be heard, as outlined in Section 15A (3) 2 of the Act, there is no such obligation on the Commission.

21 It was submitted that the Commission had a duty to act fairly and they did so in the circumstances. The Commission sought to conduct an inter-partes hearing which did not come to fruition despite multiple attempts to do so. Based on the fact that

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