SI REN v STRATA CORPORATION 12753 INC [2024] SASCA 106

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) CIV-22-008709 Appellant: SI REN Counsel: MR S KIKKERT - Solicitor: MASOTHY YIN Respondent: STRATA CORPORATION 12753 INC Counsel: MR E BELPERIO - Solicitor: BOTTEN LEVINSON LAWYERS Hearing Date/s: 11/08/2023 File No/s: CIV-22-013896 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. REN v STRATA CORPORATION 12753 INC [2024] SASCA 106 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 29 August 2024 REAL PROPERTY - STRATA AND RELATED TITLES - MANAGEMENT AND CONTROL - BODY CORPORATE: POWERS, DUTIES AND LIABILITIES REAL PROPERTY - STRATA AND RELATED TITLES - MANAGEMENT AND CONTROL - BODY CORPORATE: POWERS, DUTIES AND LIABILITIES - GENERALLY REAL PROPERTY - STRATA AND RELATED TITLES - MANAGEMENT AND CONTROL - RIGHTS AND OBLIGATIONS OF PROPRIETORS APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING - APPEALS BY WAY OF REHEARING - WHEN REHEARING DOES NOT INVOLVE HEARING DE NOVO PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - POWER TO AWARD GENERALLY This is an appeal from a decision of a single judge of the District Court under the Strata Titles Act 1988 (SA) (‘the Act’). The subject of the decision is a protracted disagreement between the appellant and respondent regarding the appellant’s use of a unit in the Mansions on Pulteney. -- 1 of 28 -- The appellant is the registered proprietor of the unit, which was purchased in its original form as a one-bedroom apartment. Following the purchase, the appellant commenced works within the unit which involved erecting partition walls to create five separate bedrooms within the unit. The appellant then proceeded to grant leases or licences in respect of each bedroom within the unit. The appellant received retrospective council approval for the works within the unit. It was alleged by the respondent that the appellant undertook this work without the required approval from the Strata Corporation and failed to obtain approval by special resolution from the Strata Corporation to allow the grant of any lease or licence. The respondent instituted proceedings in the District Court on the ground that the appellant had breached the legislative requirements under the Act by failing to obtain authorisation in respect of the works and the grant of the lease or licence. The issues at trial can be summarised as follows: • Whether the work carried out on the unit was ‘prescribed work’ for the purposes of s 29 of the Act, and if so, whether the appellant required authorisation by special resolution of the Strata Corporation to undertake those works. • If the appellant was required to receive authorisation to undertake the works, was that authorisation given. • Whether the appellant required authorisation by unanimous resolution of the Strata Corporation to grant a lease or licence over a part of the unit. • If the appellant was required to receive authorisation to grant a lease or licence, was that authorisation given. The trial Judge held that the work carried out was ‘prescribed work’, that the appellant did require authorisation for both the work and to grant a lease or license over part of the unit, and that authorisation had not been given by the Strata Corporation on either of those bases. The trial Judge ordered that the appellant carry out necessary building works to restore the unit to its original state; that the appellant refrain from carrying out further works on the unit until and unless the Strata Corporation authorises such works; that the appellant give notice to the tenants to vacate the premises; that the appellant refrain from entering into any lease or licence over the unit unless authorised; and that the appellant pay the respondent’s costs on a party-party basis. The appellant appealed against those orders on the following grounds: 1. That the trial Judge erred in deciding that the matter should be determined by the District Court instead of the Magistrates Court. The appellant contended before this Court that the matter was not of sufficient complexity or significance to be dealt with in the District Court. 2. That the trial Judge erred in making a costs order in circumstances where the matter should have been heard in the Magistrates Court. Had that occurred, the costs would arguably have been lower and pre-action steps would have been taken by the respondent such that the matter may have resolved with significantly less expense to the appellant. 3. That the appellant did not receive a fair hearing because she was not in a medically fit state to conduct a trial and the trial Judge’s decision was not a bona fide attempt to exercise the District Court’s power. The appellant sought to adduce fresh evidence in support of this ground of appeal. 4. That the Strata Corporation was estopped from commencing proceedings in the District Court and seeking relief under s 41A of the Act. 5. That the trial Judge erred in finding that the putting up of internal walls constituted the alteration of a building and the erection of a structure. -- 2 of 28 -- 6. That the trial Judge erred in finding the Strata Corporation had legal authority to regulate non-structural changes to the unit. 7. That the trial Judge erred in finding that the appellant had breached s 44(2)(b)(ii) of the Act by entering into five separate tenancy agreements without authorisation of the Strata Corporation. Any contravention of the Act had already been dealt with pursuant to s 29(2)(a) and, therefore, s 44 was misapplied by the trial Judge. Held, by the Court, refusing leave to appeal on ground 2 and dismissing the appeal. 1. The trial Judge did not err in permitting the matter to be heard in the District Court. The issues between the parties were not straight forward and involved the interplay between several different legislative regimes. The history of animosity between the parties exacerbated the level of complexity in determining those issues. 2. There is no basis upon which it is possible to make any finding as to what costs order might have been made had the matter been heard in the Magistrates Court rather than the District Court. Upon a review of the materials, it also appears unlikely that the matter would have resolved if the matter had been heard in the Magistrates Court and pre-action steps were taken by the Strata Corporation. 3. The appellant was afforded a fair trial. The material the appellant sought to adduce on appeal was not fresh as it could have been obtained by the appellant for use at the trial. In any event, the evidence would not have resulted in a different outcome. In relation to the appellant's complaint that the trial Judge's decision was not a bona fide attempt to exercise the District Court’s power, there is no scope for the operation of the Hickman principle. 4. There was no legal or factual basis to find that the respondent was estopped from pursuing proceedings in the District Court or defending this appeal. 5. The renovations to the unit constituted ‘prescribed work’ for the purposes of s 29. Accordingly, authorisation was required. The appellant was in breach of the Act, and there was no error made by the trial Judge in so finding. 6. Consistent with the broader legislative scheme, a body corporate has the legal authority to regulate changes within wholly private areas under the Act. There was no unanimous resolution passed by the Strata Corporation authorising the appellant to lease or licence any part of the unit. Therefore, the appellant was in breach of s 44(2)(b)(ii) of the Act, and there was no error by the trial Judge in so finding. Section 44 was not misapplied by the trial Judge. Development Act 1993 (SA); District Court Act 1991 (SA) s 42(1); Heritage Places Act 1993 (SA) s 36; Magistrates Court Act 1991 (SA) s 37(1); Strata Titles Act 1988 (SA) ss 3, 19, 25, 25(c), 28, 28(1)(b), 30, 31, 29, 29(1), 29(1)(b), 29(2), 29(2)(a), 29(6), 29(6)(a), 41A, 41A(3), 41A(4), 41A(7), 41A(9), 41A(9)(c), 41A(9)(d), 41A(11), 44, 44(2)(b)(ii), 44(3)(a); Uniform Civil Rules 2020 (SA) r 213.1(1), referred to. Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1982] QB 84; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; P J Nash Pty Ltd v Food and Beverage Australia Limited [2021] SASCA 86; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, discussed. Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129; R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Taylor v Hayes (1990) 53 SASR 282; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Warren v Coombes (1979) 142 CLR 531; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24, considered. -- 3 of 28 -- -- 4 of 28 -- REN v STRATA CORPORATION 12753 INC [2024] SASCA 106 Court of Appeal – Civil: Livesey P, Doyle and David JJA 1 THE COURT: This is an to appeal from a decision of a single judge of the District Court under the Strata Titles Act 1988 (SA) (‘the Act’). The respondent is the Strata Corporation of property in strata plan 12753 at 21 Pulteney Street, Adelaide SA 5000 ('the Strata Corporation’); a building comprised of 52 residential units known as the Mansions on Pulteney (‘the Mansions’). The appellant is the registered proprietor of unit 24 (‘the unit’) in that building and a member of the Strata Corporation. The unit was initially designed as a one-bedroom apartment. The appellant erected partition walls within the unit to create five separate bedrooms and proceeded to grant leases or licences in respect of each of the bedrooms, without the authorisation of the Strata Corporation. 2 The Strata Corporation instituted proceedings in the District Court on the ground that the appellant had breached ss 29(1)(b) and 44(2)(b)(ii) of the Act by, respectively, failing to obtain authorisation from the Strata Corporation to carry out ‘prescribed works’ on the unit and grant any lease or licence over part of the unit. The Strata Corporation sought orders that the appellant restore the unit to its original state and refrain from leasing or licencing any part of the unit; and a declaration that any lease or licence already granted was void. 3 On 11 November 2022, the trial Judge found the appellant had breached both ss 29(1)(b) and 44(2)(b)(ii) of the Act and declared any lease or licence agreements entered into by the appellant in respect of the unit void.1 4 On 9 December 2022, his Honour made the following orders pursuant to s 41A(9) of the Act. First, that the appellant carry out any necessary building works to restore the unit to its original state by 30 April 2023. Secondly, that the appellant refrain from carrying out any further prescribed works on the unit unless and until such time as the Strata Corporation authorised the prescribed works by special resolution. Thirdly, that the appellant give any tenants occupying the unit notice that they must vacate the premises by 31 January 2023. Fourthly, that the appellant refrain from entering into any lease or licence agreement over any part of the unit unless authorised under s 44(2)(b)(ii) of the Act. Finally, that the appellant pay the Strata Corporation’s costs on a party-party basis. 5 The appellant now appeals against the decision of the trial Judge on the following, broadly summarised, grounds: 1. The trial Judge erred in deciding that the matter should be determined by the District Court instead of the Magistrates Court. 1 Strata Corporation 12753 Inc v Ren [2022] SADC 134. -- 5 of 28 -- [2024] SASCA 106 The Court 2 2. The trial Judge erred in awarding costs in circumstances where the matter could have more appropriately been dealt with by the Magistrates Court at lower costs to the appellant and/or where appropriate pre-action steps were not taken by the respondent. 3. The appellant was not in a fit state to present evidence before the District Court and accordingly, did not receive a fair hearing. The decision was not a bona fide attempt to exercise the District Court’s power. 4. The Strata Corporation was estopped from seeking the relief sought and commencing and/or pursuing proceedings in the District Court or defending this appeal. 5. The trial Judge erred in finding that the appellant had breached the Act by failing to obtain authorisation from the Strata Corporation to carry out prescribed works on the unit as the works were not ‘prescribed works’. 6. The trial Judge erred in finding the Strata Corporation had legal authority to regulate changes when, in fact, the Strata Corporation had no authority to regulate changes within wholly private areas. 7. The trial Judge erred by misapplying s 44 of the Act in determining that the appellant’s right to grant a lease was fettered unless there was a unanimous resolution and/or by failing to take into account s 29(2)(a) of the Act. Procedural history 6 The Strata Corporation filed an originating application in these proceedings on 10 August 2022, seeking the following orders: (1) That the application be brought in the District Court under s 41A(3) of the Act; instead of the Magistrates Court. (2) An interim order pursuant to s 41A(11) of the Act that the appellant facilitate immediate and ongoing access to the unit to enable the Strata Corporation to assess the adequacy of fire safety in the unit and fulfil its functions and obligations under ss 25, 30 and 31 of the Act. (3) An interim order pursuant to s 41A(11) of the Act that the appellant immediately cease leasing or licencing any part of the unit to enable the respondent to fulfil its obligations under s 36 of the Heritage Places Act 1993, and to ensure the appellant’s use of the unit did not damage, destroy or reduce the heritage value of the Mansions apartment building which forms part of a ‘State Heritage Listed Place’. -- 6 of 28 -- [2024] SASCA 106 The Court 3 (4) An order pursuant to s 41A(9)(c) of the Act that the appellant undertake building works to restore the unit to its original state. (5) An order pursuant to s 41A(9)(d) of the Act that the appellant refrain from leasing or licencing any part of the unit. (6) An order that any lease or licence agreements entered into by the appellant in respect of the unit are void and may not be lodged for registration pursuant to s 44(3)(a) of the Act. (7) Such other orders as the Court sees fit. 7 On 16 August 2022, the appellant filed an interlocutory application in response, along with a 225-page affidavit. The matter was called on for hearing that day. During that hearing, the issue of permission to proceed in the District Court pursuant to s 41A of the Act was addressed. After counsel for the Strata Corporation had completed submissions, the trial Judge asked the appellant if she had any opposition to permission being granted. At that point in the proceedings, she did not. At the conclusion to that hearing, the appellant was ordered to file existing affidavit material by the close of business that day and any other relevant material by 23 August 2022, so that she had a week to obtain and file any further material she sought to rely on. 8 On 23 August 2022, the appellant filed six documents relating to the fire inspection and the development application to the Adelaide City Council (‘the Council’) to the Court. The matter was called on for directions hearings and submissions on several occasions, being 24 August 2022, 30 August 2022, 5 September 2022 and 23 September 2022. The appellant did not appear at the first hearing but attended the subsequent hearings in person. 9 The directions hearing on 24 August 2022 proceeded in the appellant’s absence. Counsel for the Strata Corporation pressed for the interim orders sought in the originating application. On 26 August 2022, the trial Judge granted an interim order permitting the Strata Manager, Mr Ben Moch, and a representative from Combined Fire Safety Pty Ltd to undertake an urgent fire inspection of the unit upon giving the appellant 48 hours’ notice of the date and time of the proposed safety inspection. 10 The purpose of the directions hearing on 30 August 2022 was to explain to the appellant the terms of the interim order granted on 26 August 2022. During the hearing, the trial Judge asked the appellant if there was ‘anything about the terms of the order that you do not understand?’. The appellant did not identify any aspect of the order that she did not understand but took issue with the 48-hour notification requirement in relation to the fire safety inspection. The trial Judge informed the appellant that the order had been made and the appellant was obliged to comply. The appellant confirmed to the trial Judge that she had given notice of the upcoming fire safety inspection to the tenants residing in the unit at the time. -- 7 of 28 -- [2024] SASCA 106 The Court 4 11 At the commencement of the directions hearing on 5 September 2022, the trial Judge explained to the appellant the purpose of the hearing and the trial process and set out, in concise terms, the arguments being made against her by the Strata Corporation and the issues she would need to address at trial. The trial Judge acknowledged the complexities of the court procedures and endeavoured to ‘put in place a process that simplifies everything and gets down to what are the real issues between [the parties]’. The appellant told the trial Judge she did not feel like she had ‘enough time to submit all the documents [she needed] to rely on’. The trial Judge asked her how long it would take her to gather all the materials she required, to which the appellant replied ‘another three weeks’. The trial date of 29 September 2022 was within that time frame. Before adjourning, the trial Judge again asked the appellant if the trial date of 29 September 2022 was suitable, to which the appellant responded, ‘I can do it today, I think … If that’s [the] only argument I need to make, I don’t need much more time to submit …’. At the conclusion of the hearing the trial Judge ordered the Strata Corporation prepare a list of issues, in the form of a letter, setting out the construction of the relevant sections of the Act and any proposed agreed facts. 12 On 12 September 2022, the Strata Corporation’s solicitor sent a letter to the appellant in accordance with the trial Judge’s orders of 5 September 2022. 13 At the directions hearing of 23 September 2023, the trial Judge asked the appellant if she understood the contents of the letter of 12 September 2023, and she said that she did. The trial Judge then proceeded to, once again, set out the issues the appellant would need to address at the trial and asked her if she understood how the trial would transpire. The appellant said she understood. Issues at trial 14 The trial commenced on 29 September 2022. The appellant represented herself and appeared in person. The trial lasted for one day. 15 In broad terms, the following issues were in contention at trial. First, whether the work carried out on the unit was ‘prescribed work’ for the purposes of s 29 of the Act and, if so, whether the appellant required authorisation from the Strata Corporation by way of special resolution to carry out the prescribed work. Secondly, in the event that the appellant did require authorisation by way of special resolution, whether she was so authorised. Thirdly, whether the appellant required authorisation by way of a unanimous resolution of the Strata Corporation to grant a lease or licence over a part of the unit pursuant to s 44(2)(b)(ii) of the Act. Finally, in the event the appellant required such authorisation, whether she was so authorised. 16 Those issues fell to be determined against the background of the following uncontested factual matters: -- 8 of 28 -- [2024] SASCA 106 The Court 5 • On 29 August 2018, the appellant informed the Strata Manager of the Strata Corporation that she intended to purchase and renovate the unit to create five to six bedrooms within. • On 3 September 2018, the management committee of the Strata Corporation met and considered the appellant’s proposal (‘the Committee’). The Committee determined the proposed renovations were ‘prescribed works’ for the purposes of s 29(6)(a) of the Act and were ‘strongly against the proposal’. The Committee instructed the manager to advise the appellant and her agent that the Committee did not support the renovation. • On 4 September 2018, the appellant applied to the Council for development approval to undertake internal renovations within the unit. • On or about 7 September 2018, the appellant became the registered proprietor of the unit and a member of the Strata Corporation. • On 10 September 2018, the appellant submitted a development approval application for the unit to undertake internal alterations to the existing apartment. • Following the purchase, between April and May 2019, the appellant erected several walls within the unit to create five bedrooms. The renovations converted the unit from having a single bedroom, bathroom, living space, hallway and kitchen to having five bedrooms, a bathroom, hallway and kitchen. • In May 2019, the appellant commenced building works within the unit pertaining to the development application she had submitted on 4 September 2018. At this time, the appellant had not yet received development approval from the Council for the proposed internal renovations. • On 3 May 2019, the Strata Manager informed the appellant that she did not have approval from the Strata Corporation to undertake the work she had proposed in her application to the Council for development approval 4 September 2018. The appellant was directed to cease work immediately and restore the unit to its original state. • As of 16 May 2019, the appellant had failed to cease work as directed by the manager. By letter of that same date, legal representatives acting on behalf of the Strata Corporation notified the appellant that in the event she had breached s 29 of the Act, she may be required, within a reasonable period, to restore the premises to its previous state. The appellant was again told to immediately cease all works and refrain from carrying out any further works on the unit. -- 9 of 28 -- [2024] SASCA 106 The Court 6 • On 24 June 2019, the Council inspected the unit and subsequently issued an Enforcement Notice to the appellant. The Enforcement Notice observed that unauthorised building work had occurred which included walls being erected inside the unit to create more rooms and directed the appellant to remove all unauthorised building work from the unit. • On 10 October 2019, the appellant was granted development approval retrospectively for the works she had commenced in May 2019. The development approval was subject to two conditions: first, that the development was to be undertaken in accordance with the approved floor plan; and secondly, that the partition walls were to be installed in accordance with specified requirements. • On 25 November 2019, the Strata Corporation held its annual general meeting. At the meeting it was noted that the appellant had carried out internal renovations within the unit and effectively transformed it into a multi-bedroom apartment without the approval of the Strata Corporation. It was also noted that the Committee had requested that the appellant undertake remedial works to restore the unit back to its previous state and provide evidence of doing so. • On 19 December 2019, the Strata Manager requested that the appellant complete all remedial works necessary to restore the unit back to its original state, and, after doing so, provide a report from the Council confirming the unit’s compliance with the original development approval. • At the time of trial, the appellant had continued to carry out building work to convert the unit into a multi-bedroom apartment, had not complied with the request to perform remedial works, and had entered into multiple agreements with individuals effectively leasing out the bedrooms within the unit. 17 Counsel for the Strata Corporation submitted that the works undertaken to the unit were ‘prescribed works’ and authorisation was required by way of special resolution. The Strata Corporation relied on the minutes of the committee meetings from September 2018 to September 2022 to establish that the Strata Corporation had never passed a special resolution granting the necessary authorisation, and the works were, consequently, carried out in breach of the Act. 18 Counsel for the Strata Corporation also submitted that the lease or licence of part of the unit could only be granted if authorised by unanimous resolution of the Strata Corporation. The Strata Corporation relied on evidence and affidavit material from Ms Lynne Veness to establish that there had not been a unanimous resolution authorising the leasing or licencing of any part of the unit. It was -- 10 of 28 -- [2024] SASCA 106 The Court 7 submitted that accordingly, the appellant was in breach of the Act by leasing or licencing parts of the unit to various tenants. 19 The appellant’s case at trial was that development approval, granted under the Development Act 1993 (SA) (‘the Development Act’) on 10 October 2019, retrospectively allowed her to make the alterations to her unit which commenced in May 2019. The appellant submitted that by virtue of the retrospective approval and the pre-existing approval of the residential use of the building, there was no further authorisation required for the work carried out on the unit or the subsequent leasing of parts of it. 20 In the alternative, the appellant submitted the retrospective development approval constituted an amendment to the strata plan and, through her purchase of the unit, each member of the Strata Corporation had effectively agreed to the works thereby negating the requirement for any resolution, unanimous or special, pursuant to the Act. 21 In the further alternative, the appellant submitted that a retrospective special resolution had been passed at the annual general meeting on 25 November 2019, authorising the relevant works to the unit. The trial Judge’s reasons 22 The trial Judge set out the factual basis of the proceedings and the parties’ submissions. His Honour then proceeded to consider the purpose and operation of the Act and the Development Act. His Honour observed: … all development approval had to be approved under the Development Act 1993 and development that was approved had to also be authorised by the strata corporation if it was prescribed work. 23 That being said, the trial Judge found that because the application was concerned with ss 29 and 44(2)(b)(ii) of the Act, it was to be determined having regard to the proper construction and application of that statute; there was no need to further consider the Development Act. 24 As to whether the building works constituted ‘prescribed works’ for the purposes of s 29 of the Act, the trial Judge said: ‘[P]rescribed work’ in relation to a ‘unit’ means ‘the erection, alteration, demolition or removal of a building or structure’. Having taken a common-sense approach to construction of the Act and by giving those words their ordinary meaning, I find that the work to Unit 24 carried out by the respondent was ‘prescribed work’. I find that the putting up of internal walls is the alteration of a building and the erection of a structure. (Citations omitted.) 25 Upon finding that the work carried out within the unit was ‘prescribed work’ for the purposes of s 29 of the Act, the trial Judge found that the appellant could not carry out such work ‘unless authorised to do so by special resolution of the -- 11 of 28 -- [2024] SASCA 106 The Court 8 strata corporation’. After considering the appellant’s submissions on this topic, his Honour found that no formal special resolution had been passed. 26 The trial Judge found that the appellant was prohibited from leasing or licencing any part of the unit ‘unless authorised to do so by unanimous resolution of the strata corporation’. His Honour considered the appellant’s submission that a unanimous resolution had been passed by default when she purchased the unit and when development approval was granted retrospectively in October 2019. His Honour noted that the development approval process under the Development Act is separate to any approval required under the Act. Accordingly, his Honour found that the appellant required authorisation, separate to any authorisation that may be relevant under the Development Act, to lease or licence any part of the unit and, because the appellant had not obtained such authorisation from the Strata Corporation, she was in breach of s 44(2)(b)(ii) of the Act. 27 On 8 December 2022, the trial Judge heard submissions from the parties as to what orders should be made in respect of the issues determined at trial and as to costs. Upon hearing those submissions, his Honour made the following orders: 1. A declaration that the appellant breached s 29(1)(b) of the Act by carrying out prescribed works to the unit without authorisation by special resolution of the Strata Corporation. 2. The appellant is to carry out building works to restore the unit to its original state, in accordance with the original floor plan for the unit, on or before 30 April 2023. 3. The appellant is to refrain from carrying out any further prescribed works to the unit, unless and until such time as the Strata Corporation has authorised the prescribed works by special resolution. 4. A declaration that the appellant breached s 44(2)(b)(ii) of the Act by granting a lease or a licence over part of the unit without authorisation of the Strata Corporation by unanimous resolution. 5. A declaration that any lease or licence agreements entered into by the appellant in respect of the unit is void. 6. The appellant is to notify any tenants occupying the unit that they must vacate the premises on or before 31 January 2023. 7. The appellant is to refrain from entering into any lease or licence over any part of the unit unless authorised to do so under s 44(2)(b)(ii) of the Act. 8. The appellant is to pay the Strata Corporation’s costs on a party-party basis. -- 12 of 28 -- [2024] SASCA 106 The Court 9 Nature of the appeal 28 The appeal is by way of re-hearing.2 This Court is required to undertake an independent review of the evidence and findings made by the court at first instance and form its own view as to the appropriate outcome.3 The principles governing such an appeal were considered in more detail by this Court in Pitt v Commissioner for Consumer Affairs4 but importantly, the appeal is not a hearing de novo, and this Court should not substitute its own view, or otherwise interfere, unless satisfied that the trial Judge fell into error.5 29 Appeal ground 2, in relation to the costs order, is subject to the grant of leave to appeal.6 30 Following the appeal hearing, the appellant sought to reopen the appeal and put further submissions and evidence before this Court. The written applications and correspondence did not disclose a proper basis for doing so, and accordingly, the applications to reopen were declined.7 Ground 1 – Jurisdiction under s 41A of the Act 31 The appellant complained that the trial Judge erred in deciding that the matter should be determined by the District Court instead of the Magistrates Court. As outlined earlier, his Honour permitted the Strata Corporation to institute proceedings in the District Court pursuant to s 41A of the Act. 32 Section 41A relevantly provides: 41A—Resolution of disputes etc (1) An application may be made under this section— (a) if the appellant claims that a breach of this Act or of the articles of the corporation has occurred; or (b) if the appellant claims to have been prejudiced, as occupier of a strata unit, by the wrongful act or default of the strata corporation or a delegate or the management committee of the strata corporation, or of some other member of the strata corporation; or 2 Lee v Lee (2019) 266 CLR 129 at [55] per Bell, Gageler, Nettle and Edelman JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ; Fox v Percy (2003) 214 CLR 118 at [25] per Gleeson CJ, Gummow and Kirby JJ. 3 Taylor v Hayes (1990) 53 SASR 282 at 291 per Perry J; Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJ; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114] per Doyle, Livesey and Bleby JJA. 4 Pitt v Commissioner for Human Affairs [2021] SASCA 24 at [116]-[118]. 5 Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40] per Doyle CJ with whom Duggan and Lander JJ agreed). 6 Uniform Civil Rules 2020 r 213.1(1). 7 The written correspondence and applications were received by email on 24 October 2023, 19 December 2023 and 9 January 2024. -- 13 of 28 -- [2024] SASCA 106 The Court 10 (c) if a member of a strata corporation claims that a decision of the strata corporation or a delegate or the management committee of the strata corporation is unreasonable, oppressive or unjust; or (d) if a dispute arises— (i) between a strata corporation and a member of the corporation; or (ii) between two or more members of a strata corporation, in relation to any aspect of the occupation or use of a strata unit. (2) Subject to this section, an application must be made to the Magistrates Court. (3) A person may, with the permission of the District Court, bring an application under this section in the District Court. (4) The District Court may, on the application of a party to proceedings under this section that have been commenced in the Magistrates Court, order that the proceedings be transferred to the District Court (and such an order will have effect according to its terms). (5) Proceedings should not be commenced in, or transferred to, the District Court under subsections (3) or (4) unless the District Court considers that it is appropriate for the court to deal with the matter by reason of the complexity or significance of the matter. … (7) A court, in hearing and determining an application under this section, should act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. 33 The Strata Corporation sought permission for the matter to be heard in the District Court on the basis of its complexity and significance, having regard to: • the allegation that the appellant’s use of the unit was compromising the respondent’s ability to comply with its statutory obligations under the Heritage Places Act 1993 (SA) to protect the Mansions as a ‘State Heritage Place’; • the appellant’s history of vexatious litigation against the Strata Corporation, its delegates, other unit holders, receptionists and in the Magistrates Court; and -- 14 of 28 -- [2024] SASCA 106 The Court 11 • the appellant’s history of alleged bullying, harassment, and nuisance behaviour.8 34 An affidavit of the Secretary of the Management Committee of the Strata Corporation, Ms Lynne Veness,9 filed in support of the respondent’s originating application set out the full background of the matter, and outlined the basis upon which an order was sought. 35 A further affidavit sworn by Ms Veness10 received by the trial Judge expanded upon the Strata Corporation’s concerns in relation to fire risk, including that there was reason to believe that fire and smoke detectors had been interfered with and the appellant had changed the locks on the unit and was refusing access to the unit. 36 On 16 August 2022, the trial Judge called the matter on after the appellant filed an interlocutory application seeking an order that the Court strike out the Strata Corporation’s originating application. During those proceedings, his Honour asked the appellant if she had any opposition to the application for proceedings to be brought in the District Court rather than the Magistrates Court. The following exchange occurred between his Honour and the appellant: HIS HONOUR: … there’s three things that I would like to try and deal with today, the first is whether you have any opposition to the permission that the Strata Corporation seeks for these proceedings to be brought in this court rather than the Magistrates Court. [APPELLANT]: Because I’m not a lawyer so I don’t know the difference at the moment because they only serve[d] me the document Friday afternoon. HIS HONOUR: I understand. … HIS HONOUR: … So the difference really is that the Magistrates Court is lower in hierarchy than the District Court, so this is a higher court, not the highest court, we’re sort of in the middle here in South Australia but Mr Belperio’s client says ‘Well look this is all quite complicated and difficult and it’s involving lots of allegations about how people have behaved and so this is appropriate for a higher court than the Magistrates Court’ and you’ve been to the magistrates court before, I think you’ve told me that. [APPELLANT]: Yes. 8 For example, an email sent by the appellant to Ms Ellis (the then Strata Manager) on 20 September 2019 alleged that Ms Ellis “found (her) extremely attractive (and) in love with me” and that Ms Ellis had sexually propositioned her and was upset that she had been rejected by the appellant. 9 Affidavit of Lynne Kaye Veness dated 09 August 2022 (FDN 2). 10 Affidavit of Lynne Kaye Veness dated 19 August 2022 (FDN 8). -- 15 of 28 -- [2024] SASCA 106 The Court 12 HIS HONOUR: So do you have any opposition to me giving permission to Mr Belperio’s client to bring these proceedings in the District Court. [APPELLANT]: Can I have sometime [sic] to have legal advice on that? HIS HONOUR: Well the problem with that of course is that at the moment we are before the court, how long would you need to get legal advice? [APPELLANT]: I don’t know. But at the moment I’m not opposing that. HIS HONOUR: You’re not opposing it? [APPELLANT]: No, at the moment I’m not opposing. 37 Later, his Honour said: HIS HONOUR: I’m going to put this off for a while, you should get some legal advice, I suspect you won’t, but you should get some legal advice because you’re embarking on a very difficult task in representing yourself. It seems to me that there is a serious dispute, that that dispute is one of some complexity and it’s one of some longstanding disagreement. So I’m inclined to give the strata corporation permission to bring proceedings in this court. 38 At the conclusion to the hearing, his Honour made orders that a copy of the transcript of proceedings be provided to the appellant. 39 The appellant contended before this Court that the matter was not of sufficient complexity or significance to be dealt with in the District Court. In support of that submission, the appellant relied on a letter she received from the Strata Corporation’s solicitor dated 12 September 2022 (‘the letter’) which, she alleged, demonstrated the simplicity of the matter. The appellant also submitted that ‘a fair reading of the judgment clearly shows that the issues before the District Court were not complex’. 40 We are satisfied that the trial Judge did not err in permitting the matter to be heard in the District Court pursuant to s 41A(4) of the Act. The issues between the parties, as set out in the originating application, were not straight forward and on their face involved the interplay between several different legislative regimes. Further, the history of animosity between the parties exacerbated the level of difficulty in determining those issues. 41 It is true that, ultimately, the issues at trial, as they crystallised before the trial Judge, were not particularly complex and their resolution relatively straightforward. However, the contested issues at trial were not the same as those in the originating application. The matters in dispute were narrowed by the time of trial as the appellant had admitted key factual matters that would otherwise have to be proved by the respondent. Those matters included the specific building works undertaken by the appellant and the tenancy arrangements entered by the appellant with other non-unit holders. In addition, his Honour was required to -- 16 of 28 -- [2024] SASCA 106 The Court 13 consider a large volume of material tendered by both parties before reaching his conclusions and finally determining the matter. 42 As to the appellant’s submission that the Magistrates Court would have been easier for her to navigate as a self-represented litigant, under s 41A(7) of the Act, a court in hearing and determining an application under this section is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. A court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. That provision applies to both the Magistrates Court and the District Court. It is clear that the trial Judge conducted the hearings and trial in that way and, in his reasons, directed himself in those terms. 43 For those reasons, we reject this ground of appeal. Ground 2 – the costs order 44 The appellant contended that the trial Judge erred in making a costs order in circumstances where this matter should have been heard in the Magistrates Court. The appellant submitted that had the matter been heard in the Magistrates Court, the costs would have been lower and pre-action steps would have been taken by the Strata Corporation. Accordingly, the matter may have resolved with significantly less expense to her. 45 As submitted by the respondent, there is no evidentiary basis upon which it is possible to make any finding as to what costs order might have been made had the Strata Corporation been successful in the Magistrates Court, rather than the District Court. Costs in any proceedings in the Civil Division of the District Court will be in the discretion of the Court.11 Similarly, the Magistrates Court has a broad discretion as to the award of costs.12 No attempt has been made to show that the relevant scale for the recovery of costs would have been materially different in the Magistrates Court or that the costs now potentially recoverable could not have been recovered in the lower court. 46 Moreover, there is no basis to find that the matter was likely to have resolved if pre-action steps were taken by the Strata Corporation. The parties had been involved in an ongoing dispute since 2019. Since that time, the appellant has instituted proceedings against the Strata Corporation, and others, in the Magistrates Court on multiple occasions. In addition, upon commencing the present proceedings, the appellant did not take any meaningful steps to resolve matters by way of dispute resolution. On the material before this Court, it appears unlikely that the matter would have resolved had proceedings been instituted in the Magistrates Court, and pre-action steps undertaken by the parties. 11 District Court Act 1991 (SA) s 42(1). 12 Magistrates Court Act 1991 (SA) s 37(1). -- 17 of 28 -- [2024] SASCA 106 The Court 14 47 We are satisfied that there was no error by the trial Judge in the exercise of his discretion in relation to costs. 48 We refuse leave to appeal on this ground. Ground 3 – whether the appellant received a fair hearing 49 The appellant complained that she was not in a medically fit state to conduct a trial before the District Court and, consequently, she did not receive a fair hearing. In support of this ground of appeal the appellant sought to adduce fresh evidence regarding her medical state and her capacity to understand the issues in dispute at trial and present her case. 50 More specifically, the appellant sought to rely on an affidavit she swore on 20 April 2023, and the accompanying annexures, which purported to set out the state of her mental health at the time of the District Court proceedings. Relevantly, attached to the appellant’s affidavit is a report by Dr Tushar Singh, a consultant psychiatrist, dated 28 August 2020. Dr Singh diagnosed the appellant with major depression, complex PTSD and borderline personality disorder and opined that these conditions were likely the result of her past psychological and sexual trauma, abnormal childhood development and recent psychosocial stressors. It is to be immediately noted that the psychiatric report is dated almost two years before the trial took place in the District Court. 51 Also attached to the affidavit is a discharge summary from the appellant’s admission to the Royal Adelaide Hospital on 29 August 2020. She was discharged on 3 September 2020. The discharge summary reported that the appellant’s presentation at the Royal Adelaide Hospital was triggered by a ‘strata building staff member attempting to enter her unit and filming her’ and because of her long-running dispute regarding entry to her premises for fire inspection and ‘de-activation of swipe cards’. The author noted that the appellant declined medication and would not permit hospital staff to make phone contact with the manager of the Strata Corporation to confirm the nature of the disputes she described as causing her medical episode. 52 The appellant also sought to rely on a letter from a psychiatrist, Dr Tony Davis, dated 30 March 2021. Dr Davis examined the appellant via teleconsultation on 25 February 2021 and 23 March 2021. He assessed her capacity to participate in legal proceedings and instruct solicitors in relation to an unrelated matter before SACAT. Dr Davis noted the consensus of psychiatric opinion was that the appellant suffered from borderline personality disorder, with significant emotional dysregulation and recurrent dissociation, associated with recurrent suicidal thoughts, repeated deliberate self-harm, post-traumatic symptoms, and variable degrees of anxiety and depression. 53 Based on his clinical assessment and review of the relevant medical records, Dr Davis considered that the appellant was capable of recalling information relevant to various legal complaints she was involved in at the time ‘given her -- 18 of 28 -- [2024] SASCA 106 The Court 15 report of a more stable mental state in recent months’. While Dr Davis expressed concern about the appellant’s ability to maintain emotional stability in the context of complex legal proceedings, his assessment indicated that she ‘is capable of understanding the nature of the legal proceedings and the consequences of her decisions.’ Further, upon his assessment of the appellant, Dr Davis considered she was an intelligent woman who was not troubled by any form of cognitive impairment that would impact on her understanding of legal processes; had the capacity to participate in litigation, including as a witness (but would require the assistance of a litigation guardian to ensure that her case could be adequately heard); and had the capacity to instruct solicitors in relation to proceedings (though that capacity could fluctuate according to her emotional state). 54 The appellant also relied on evidence that she was admitted to the Royal Adelaide Hospital on 21 August 2022, after experiencing a rise in body temperature and passing out on the street. 55 In her affidavit, the appellant claimed she experienced ‘extreme stress and shock when proceedings were commenced’ and that her mental state was further impacted by an unexpected pregnancy. She claimed that she was unfit to present her case because she suffered from dissociation with reality and, as a result, was unable to focus on relevant material. She said that she experienced an extreme amount of stress and shock due to the matter being listed urgently, leaving her with insufficient time to prepare her case. 56 Ultimately, the appellant contended that as a result of her illness and poor mental health, she was unable to obtain legal assistance or prepare her case, and that she did not have the mental capacity to represent herself. The appellant sought to rely on her affidavit material and annexed documents in support of this contention. 57 In relation to the receipt of fresh evidence on appeal, this Court in P J Nash Pty Ltd v Food and Beverage Australia Limited said:13 The Court may, in its discretion, accept fresh evidence on appeal. In doing so, the Court must be satisfied the evidence could not, with reasonable diligence, have been obtained for use at trial and, if the evidence had been available, it is reasonably clear that an opposite outcome would have resulted. The ultimate test is whether it is in the interests of justice to receive the fresh evidence. Public interest in the finality of litigation is also an important consideration. (Citations omitted.) 58 The appellant has provided no explanation for not adducing the ‘fresh evidence’ at the trial. The evidence of the appellant’s compromised mental health concerned reports and materials from 2020 to 2021. It was open to her to place the material before the trial Judge in September 2022. In addition, upon reviewing the new material, we are satisfied that, even if the evidence had been adduced, it 13 [2021] SASCA 86 at [66] per Lovell, Livesey and Bleby JJ. -- 19 of 28 -- [2024] SASCA 106 The Court 16 would not have influenced his Honour’s approach or have resulted in a different outcome. That is, the material does not support a conclusion that the appellant’s mental and physical health was so impaired that she was unable to put forward her case and did not receive a fair hearing. The material relates to the appellant’s condition at a time which pre-dated these proceedings by several years. In addition, the material must be considered in light of the manner in which the appellant conducted the trial, and the assistance and accommodation provided by his Honour, as revealed by the transcript of proceedings. 59 Contrary to the appellant’s submission that she only had one business day to prepare her case, she in fact had over a month. The Strata Corporation filed an originating application in these proceedings on 10 August 2022. On 16 August 2022, the appellant filed an interlocutory application in response along with a 225-page affidavit. The matter was called on for hearing on that same day. At the conclusion of that hearing, the appellant was ordered to file existing affidavit material by the close of business on that day and any other affidavit material and expert reports by Tuesday 23 August 2022, giving her a week to obtain any further materials she sought to rely on. The appellant did not appear at the directions hearing on the 24 August 2022 but filed five affidavits on that same day. 60 The matter was called on for further directions hearings on 30 August 2022, 5 September 2022 and 23 September 2022. She attended the subsequent directions hearings in person. Relevantly, at the directions hearing on 5 September 2023, the appellant told the trial Judge she felt like she did not have enough time to submit all the documents she intended to rely on. His Honour asked her how long she would need to gather all the necessary materials, to which she replied ‘another three weeks’. The trial was due to commence on 29 September 2022, which was consistent with the time frame she indicated she required. 61 The respondent sent the letter outlining the issues which remained in dispute between the parties to the appellant on 12 September 2022. 62 At the trial, the appellant confirmed the matters which were not in dispute. She cross-examined the Strata Corporation’s witnesses and commenced her case before the morning break. During proceedings, the trial Judge adjourned on occasion to allow the appellant time to consider the documents she wanted to tender. Over the lunch break, the appellant was given a further opportunity to assess whether there were any other documents she wished to tender. The appellant elected to give evidence and, during her evidence-in-chief, articulated her version of events and the basis upon which she asserted that the Strata Corporation had consented to her actions. The appellant re-articulated her case during her closing address during which she engaged with the evidence and legislative requirements. 63 From our reading of the transcript of the trial and directions hearings, it is evident that the trial Judge took every opportunity to explain to the appellant, in clear terms, the court procedures and legal processes, and accommodate her as a -- 20 of 28 -- [2024] SASCA 106 The Court 17 self-represented litigant. His Honour enquired, on multiple occasions, whether the appellant understood what was required of her. In response, she said that she did. It is apparent from the transcript that the appellant presented her arguments on the issues in dispute with sufficient skill and clarity for his Honour to properly consider her case when determining the application. 64 As to the appellant’s assertion that ‘the decision was not a bona fide attempt to exercise the District Court’s power’, that language is derived from observations of Dixon J in R v Hickman; Ex parte Fox and Clinton (‘Hickman’).14 That matter concerned the National Security (Coal Mining Industry Employment) Regulations and whether, under those regulations, the authority of a Local Reference Board was limited to the coal mining industry. In referring to reg 17, Dixon J said:15 But where the legislature confers authority subject to limitations and at the same time enacts such a clause as is contained in reg 17 it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. 65 The principle enunciated by Dixon J in Hickman was necessary to reconcile a prima facie inconsistency between a statutory provision that appeared to limit the powers of a tribunal and the privative clause that appeared to contemplate that the tribunal’s orders will operate free from any restriction (‘the Hickman principle’).16 There is no scope for the operation of the Hickman principle in the present case. 66 Upon considering the whole of the transcript of the proceedings, and all the affidavit materials tendered at trial, we are satisfied that the appellant was afforded a fair hearing. Upon reviewing the fresh material, we are satisfied that, even if the evidence had been adduced, it would not have resulted in a different outcome. We do not consider it is in the interests of justice to receive the fresh evidence. 67 We dismiss this ground of appeal. Ground 4 – estoppel 68 The appellant contended that the Strata Corporation was estopped from commencing proceedings in the District Court and seeking relief under s 41A of the Act. The appellant asserted that she “clearly informed the seller’s agent and the body corporate, through Ms Sharon Ellis (the then Strata Manager), of her intentions to add additional bedrooms to the unit” and that the Strata Corporation “did not do or say anything to disabuse or correct the appellant’s hopes, desires, expectations and/or beliefs”. The appellant contended that her purchase of the unit was conditional upon her being permitted to carry out the proposed renovations, and the Strata Corporation failed to make clear, at any point prior to the purchase 14 (1945) 70 CLR 598. 15 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 per Dixon J. 16 R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J. -- 21 of 28 -- [2024] SASCA 106 The Court 18 of the unit, that the proposed renovations would not be approved. The appellant asserted that she “only went ahead with the purchase because she had been led to believe that she could proceed with the plans that she had for the property.” On that basis, the appellant contended that the Strata Corporation was estopped from commencing proceedings in this matter. 69 Relevantly to this ground of appeal, the trial Judge made the following factual findings based on the evidence and affidavit material, which was not challenged at trial: • Over 29 and 30 August 2018, the appellant and the Strata Manager of the Strata Corporation, Ms Ellis, had an exchange via email, in relation to the appellant’s intention to purchase the unit and outlining her plan to renovate the unit by erecting walls to create five to six bedrooms inside the unit. The appellant acknowledged that approval was required to go ahead with the renovation. In response, Ms Ellis sought clarification from the appellant as to the precise renovation plans and the intended use of the unit following the renovation. The appellant responded, in essence, that she could not clarify anything at that time. • On 3 September 2018, the management committee of the Strata Corporation met and considered the intention of the respondent. The committee determined the proposed renovations were ‘prescribed works’ and were ‘strongly against the proposal’. The Committee instructed the manager to advise the appellant and her agent the Committee did not support the renovation. • Critically, on 4 September 2018, the Strata Manager informed, by email, the appellant’s agent and the owner of the unit, that the renovation would not be approved by the Strata Corporation.17 • On 4 September 2018, the appellant applied to the Council for development approval to undertake internal renovations to the unit. • On or about 7 September 2018, the appellant became the registered proprietor of the unit and a member of the Strata Corporation. • Following the purchase, during April and May 2019, the appellant erected walls within the unit to convert it from a single bedroom, bathroom, living and meals area, hallway and kitchen to five bedrooms, a bathroom, hallway and kitchen. • On 3 May 2019, the Strata Manager informed the appellant ‘you do not have approval from the Strata Corporation to undertake the work’ 17 Core Appeal Book p43. -- 22 of 28 -- [2024] SASCA 106 The Court 19 requested that she ‘cease the work immediately and restore the unit to its original state’. • By letter dated 16 May 2019, the Strata Corporation’s solicitor again told the appellant: no approval had been given to convert the unit from one bedroom to five or six bedrooms; she had failed to cease the work as requested by the Strata Manager; the works were unauthorised; the Strata Corporation was concerned the appellant had breached s 29 of the Act; the Strata Corporation may require the appellant, within a reasonable period, to restore the unit to its previous state; and she was required to immediately cease all works and refrain from carrying out further works. 70 An email on 4 September 2018 from Ms Ellis to the appellant’s real estate agent and the previous owner advised that: she had been contacted by the appellant about proposed renovations; that structural alterations even if internal are ‘prescribed works’; to carry out prescribed works required approval by special resolution; the management committee would not vote in favour of approving these works; and she would ‘reply to the potential owner (the appellant) and ask that they put any further questions through the sales agent.’ 71 Following this email, there appeared to be no written correspondence between Ms Ellis and the appellant, by which Ms Ellis advised the appellant that the management committee would not approve the proposed works to convert the unit from one bedroom to five or six bedrooms. However, Ms Ellis said in an email that she ‘would expect the reply (to the appellant) was over the phone’.18 72 Accordingly, given the trial Judge’s uncontested findings that the Strata Corporation advised the appellant’s real estate agent and previous owner before settlement that the renovation required approval by special resolution, and that the management committee would not vote in favour of the renovations (as supported by the email of 4 September 2018), as well as the assertion by Ms Ellis that she told the appellant the same over the telephone, we do not consider that there was any basis to find that the appellant was led to believe she could carry out her proposed renovations to the unit, or that she proceeded with the purchase on that basis. Before settlement the appellant’s agent was warned, and after settlement the appellant was warned. There was no legal or factual basis to find that the respondent was estopped from pursuing proceedings in the District Court or defending this appeal. 73 We dismiss this ground of appeal. Ground 5 – Breach of s 29 of the Act 74 The appellant complained that the trial Judge erred in finding that the putting up of internal walls constituted the alteration of a building and the erection of a 18 Core Appeal Book p44. -- 23 of 28 -- [2024] SASCA 106 The Court 20 structure. The appellant contended that by putting up internal walls to convert the one-bedroom unit to a five-bedroom unit, she did not alter the building or structure, and this was not ‘prescribed work’ for the following reasons. First, the external appearance of the Mansions apartment building was not altered; and secondly, the internal alterations within the unit were temporary and therefore do not meet the definition of a ‘structure’. That being so, the appellant contended that authority, by way of a special resolution of the Strata Corporation, was not required and there was no breach of the Act. 75 Section 29 of the Act provides: 29—Alterations and additions (1) Subject to subsection (1a), a person must not carry out prescribed work in relation to a unit unless the person is authorised to do so— (a) where all the units comprised in the strata scheme consist of non- residential premises—under the articles of the strata corporation; or (b) in any case—by special resolution of the strata corporation. (1a) Subsection (1) does not apply to— (a) prescribed work carried out in compliance with a direction under section 23 of the Housing Improvement Act 1940; and (b) prescribed work carried out on a unit in a strata scheme consisting only of 2 units if the work is approved development under the Planning, Development and Infrastructure Act 2016. (1b) Where a person carries out prescribed work referred to in subsection (1a)(b), the strata corporation may, by notice in writing to the owner of the unit, require the owner to carry out, within a reasonable period fixed in the notice, specified work to remedy any structural deficiency caused by the work. (2) Where a person acts in contravention of subsection (1), the strata corporation may, by notice in writing to the unit holder, require him or her to carry out, within a reasonable period fixed in the notice, specified work— (a) to remedy any structural deficiency caused by the work; or (b) to restore the unit to its previous state. (6) In this section— prescribed work in relation to a unit means— (a) the erection, alteration, demolition or removal of a building or structure; (b) the alteration of the external appearance of a building or structure. -- 24 of 28 -- [2024] SASCA 106 The Court 21 76 Section 29(6) defines ‘prescribed work’ to mean either the erection, alteration, demolition or removal of a building or structure; or the alteration of the external appearance of a building or structure. 77 As submitted by the respondent, there is no legislative requirement within the definition of ‘prescribed work’ that the work must be permanent to constitute an ‘alteration’ of the building or the ‘erection’ of a building or structure. Permanency is not a concept invoked by the Act in this context. 78 Furthermore, almost any alteration of a building or erection of a structure could be reversed through remedial building work, and so could be said to be temporary. To import a requirement of permanency would be to defeat the purpose of the provision, and the intention of the legislature. We would give those words their ordinary meaning. 79 Accordingly, we are satisfied that the installation of large stud walls, adjoining the floor and ceiling, within the unit constitutes an erection of a structure and an alteration of the building, and ‘prescribed work’ for the purposes of s 29. Accordingly, authorisation under s 29(1) was required. There was overwhelming evidence that the Strata Corporation had not passed any special resolution authorising the building works. That being so, the appellant was in breach of the Act, and there was no error made by the trial Judge in so finding. 80 We dismiss this ground of appeal. Ground 6 – Authority of strata corporation to regulate changes to the unit 81 The appellant complained that the trial Judge erred in finding the Strata Corporation had legal authority to regulate non-structural changes to the unit. There was no dispute at trial, nor on this appeal, that the respondent is a Strata Corporation for the purposes of the Act. A Strata Corporation is defined as a body corporate under s 3 of the Act. Part 3, Division 3 of the Act governs the special powers of the Strata Corporation to maintain the integrity of the strata scheme. Section 28 bestows upon the Strata Corporation the power to enforce duties of maintenance and repair. Relevantly, s 28(1) provides: 28—Power to enforce duties of maintenance and repair (1) A strata corporation may, by notice in writing to a unit holder, require the unit holder— (a) to carry out specific work in pursuance of a duty of maintenance or repair imposed on the unit holder by the articles; (b) to carry out specific work to remedy a breach of this Act or the articles on the part of the unit holder, a former unit holder, or an occupier or former occupier of the unit; (c) to carry out specified work required to be carried out on the unit by a public authority or council. -- 25 of 28 -- [2024] SASCA 106 The Court 22 82 Additionally, under s 29(2) of the Act, a Strata Corporation may require the owner of a unit to carry out specific work to restore the unit to remedy any structural deficiency or restore it to its previous state where ‘prescribed work’ has been carried out on a unit. The trial Judge found that the appellant had carried out ‘prescribed work’. 83 The appellant contended that a body corporate of a Strata Corporation has no legal authority to regulate changes within wholly private areas, and that a body corporate exists solely for the regulation of common areas. This contention is inconsistent with the broader legislative scheme. One aspect of a Strata Corporation’s statutory function is to enforce the articles of the Strata Corporation.19 Unless varied pursuant to s 19, the default articles are contained in Schedule 3 of the Act and include several matters that relate to wholly private areas.20 The Strata Corporation is also given power under s 28 to require a unit holder to carry out specified work as part of their duty of maintenance or repair. Consistent with the broader legislative scheme, it is clear that a body corporate has the legal authority to regulate changes within wholly private areas under the Act. 84 Given our finding, under appeal ground 5, that the appellant was in breach of s 29 of the Act, we are satisfied the Strata Corporation did have the authority to regulate changes to the unit under both ss 29(2) and 28(1)(b) of the Act. 85 We dismiss this ground of appeal. Ground 7 – Misapplication of s 44 of the Act 86 The appellant complained that the trial Judge erred in finding that the appellant had breached s 44(2)(b)(ii) of the Act by entering into five separate tenancy agreements without authorisation of the Strata Corporation by unanimous resolution. 87 Section 44 provides: 44—Dealing with part of unit (1) Subject to this section, a unit holder may not enter into any dealing with a part of the unit unless— (a) the dealing is to be effected by amendment to the strata plan; or (b) the dealing consists of the granting, surrendering or extinction of an easement. 19 Strata Titles Act 1988 (SA) s 25(c). 20 See for example: Clause 1 – a unit holder must maintain the unit in good repair, and an occupier of the unit must keep it in a clean and tidy condition; Clause 3 – a person bound by the articles must not use the unit or permit the unit to be used for any unlawful purpose; Clause 4 - a person must not keep an animal in the unit without the Strata Corporation’s consent; and Clause 10 – the occupier of a unit for residential purposes must not, without the consent of the Strata Corporation use or store on the unit or on the common property any explosive or other dangerous substance. -- 26 of 28 -- [2024] SASCA 106 The Court 23 (2) Subject to any other law, a unit holder may grant a lease or licence over a part of a unit— (a) if all of the units comprised in the strata scheme consist of non- residential premises; or (b) where paragraph (a) does not apply – (i) if the lease or licence is granted to another unit holder; or (ii) if the lease or licence is authorised by unanimous resolution of the strata corporation (but no authorisation is required in relation to a lease or licence over the whole of a unit). (3) Where a unit holder acts in contravention of this section— (a) the dealing is void and no instrument purporting to give effect to the dealing may be lodged for registration; and (b) the unit holder is guilty of an offence. Penalty: Division 8 fine. 88 Section 44(2)(b) makes clear that a lease or licence may be granted over part of a unit only where either: the lease or licence is granted to another unit holder; or, the lease or licence is authorised by unanimous resolution of the Strata Corporation, noting that no authorisation is required in relation to a lease or licence over the whole of the unit. 89 It is to be accepted that the appellant would have been able to lease part of her unit to another unit holder. However, there is no evidence that any of the tenants were unit holders. The appellant was also permitted to grant one lease or licence for the whole of the unit. That is not what occurred. The evidence overwhelmingly supported the trial Judge’s finding that she in fact granted five separate leases. The appellant appeared to submit to this Court that the granting of five leases to separate bedrooms within the unit aggregated to constitute a ‘lease or licence over the whole of the unit’. 90 We reject that submission. 91 Section 44 of the Act expressly contemplates a unit holder leasing different rooms within a unit to different persons and makes clear in unambiguous terms that authorisation is required for a unit holder to lease part of a unit to a non-unit holder. 92 Furthermore, the evidence overwhelmingly supported the trial Judge’s finding that there was no unanimous resolution passed by the Strata Corporation authorising the appellant to lease or licence any part of the unit. As such, we are satisfied that appellant had breached s 44(2)(b) of the Act, and there was no error by his Honour in so finding. -- 27 of 28 -- [2024] SASCA 106 The Court 24 93 The appellant further submitted that any contravention of the Act had already been dealt with pursuant to s 29(2)(a) and, therefore, s 44 was misapplied by the trial Judge. Sections 29 and 44 are entirely separate in their operation. Section 29(2)(a) deals with the Strata Corporation’s special powers to maintain the integrity of the strata scheme by requiring a person who has carried out unauthorised prescribed works in relation to a unit to remedy any structural deficiency caused by the work within a reasonable period. Section 44, on the other hand, falls under Part 4 of the Act, which is comprised of ‘miscellaneous’ provisions, and governs a unit holder’s capacity to enter into dealings with a part of a unit. Accordingly, no such contravention of s 44 of the Act can be ‘dealt with’ by satisfying s 29(2)(a) of the Act. 94 For these reasons, we dismiss this ground of appeal. Orders 1. We refuse leave to appeal on ground 2 and dismiss the appeal. 2. The Court makes the following orders, varying those made by the trial Judge on 9 December 2022: (a) The timeframe in order 6, that if there are any tenants presently occupying unit 24 that the appellant give notice to the tenants that they must vacate unit 24, is extended to 28 September 2024. (b) The timeframe in order 2, that the appellant carry out building works to restore unit 24 to its original state in accordance with the original floorplan of unit 24, is extended to 28 October 2024. 3. The respondent is awarded a lump sum in lieu of taxed costs of $25,000.00, which is payable by the appellant on 28 October 2024. 4. Liberty to apply is granted on reasonable written notice in respect of order 2(b) above. -- 28 of 28 --