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Watergate OC lodges appeal

29 Oct 2015

Watergate OC lodges appeal Image

The Watergate Owners’ Corporation (OC) has lodged a Supreme Court appeal against the VCAT decision that found it did not have the power to make rules prohibiting short-stays.

In September, VCAT member Linda Rowland published her orders on the case, which was brought to VCAT after the OC alleged multiple owners of short-stay apartments had breached OC rules.

She not only found against the OC, but also ordered it to pay the VCAT costs of the short-stay party.

The OC is appealing both Member Rowland’s decision and the costs order in the Supreme Court, with the first directions hearing set down for November 11.

The VCAT case had focused on action taken by the OC against nine owners of apartments used as short-stays, with the OC alleging the nine owners had breached multiple OC rules, in particular relating to length of stay.

Docklands Executive Apartment operator Paul Salter had represented all of the owners at VCAT.

However, Member Rowland found that the OC did not have the power to make the rules it alleged had been breached.

The Supreme Court case will proceed on two of the nine matters, one being Mr Salter’s own apartment, with the remaining seven cases struck-out, with right of reinstatement pending the outcome of the appeal.

Mr Salter confirmed he would be defending Member Rowland’s VCAT decision if the case proceeded to the Supreme Court.

The OC was able to lodge the Supreme Court appeal after its interim special resolution was finalised last month.

The OC achieved the interim resolution on September 14, with 95.5 per cent of those who voted in favour of the appeal. This equated to 53 per cent of the lot entitlement.

Less than 25 per cent of the lot entitlement opposed the resolution in the following 29 days, allowing it to be made official.

Appeal documentation submitted by the OC to the Supreme Court shows the OC is appealing the VCAT decision on a number of grounds, including:

  • The tribunal erred in law in holding that the OC did not have the power to make rules restricting length of stay or the use of lots or common property for commercial purposes;
  • The tribunal erred in law by holding that rules restricting length of stay or commercial use were invalid;
  • The tribunal erred in law by maintaining the OC had no power to regulate the use of a private lot;
  • The tribunal erred in law by not upholding the OC’s claims; and
    The tribunal erred in law by ordering the OC to pay the respondents VCAT costs.

The OC is seeking a number of orders from the Supreme Court, including:

  • That the VCAT orders be set aside;
  • That the respondents be ordered to cease using or permitting the use of their unit for the purposes of short-term accommodation;
  • That respondents be ordered to comply with all of the additional rules of the OC; and
  • That the respondents pay the OC’s VCAT costs.

Alternatively, the OC asks that VCAT’s orders and reasons for its decisions be remitted to the tribunal with the Supreme Court’s opinion on the questions of law determined for reconsideration.

The OC is also seeking costs of the Supreme Court proceedings.

The appeal will be the second time the Supreme Court has dealt with the matter of short-stays at Watergate after an earlier legal battle between the City of Melbourne and Mr Salter.

Alongside VCAT, issues relating to Watergate short-stays have also appeared at the Building Appeals Board and the Supreme Court’s Court of Appeals.

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