Australia City Properties Management Pty Ltd v The Owners - Strata Plan No 65111

lia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 European Bank Limited v Evans (2010) 240 CLR 432; [2010] HCA 6 Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Scott v Ennis-Oakes [2020] NSWCA 239 The Owners Strata Plan No 57164 v Yau (2016) 18 BPR 36,095; [2016] NSWSC 1056 The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 Waldorf Apartment Hotel The Entrance Pty Ltd v Owners Corporation SP 71623 [2010] NSWCA 226 Wigan v Edwards (1973) 1 ALR 497 Category: Principal judgment Parties: Australia City Properties Management Pty Limited (First Plaintiff/Cross-Defendant) Bo Yun Wang (Second Plaintiff) The Owners - Strata Plan No. 65111 (Defendant/Cross-Claimant) Representation: Counsel: Mr N J Kidd SC with Mr S R Meehan (Plaintiffs/Cross Defendant) Mr S Free SC with Mr O Jones (Defendant/Cross-Claimant)

Solicitors: Harris Freidman Lawyers (Plaintiffs/Cross-Defendant) Barry Nilsson Lawyers (Defendant/Cross-Claimant) File Number(s): 2019/257962 Publication restriction: None

Introduction

1. These proceedings concern a Caretaker Agreement entered into on 30 March 2001 in respect of a strata scheme located in George Street, Sydney and known as The Summit.
2. The Caretaker Agreement was made between the first plaintiff, Australia City Properties Management Pty Ltd, as Caretaker, and the defendant, the Owners Corporation of Strata Plan 65111. The first plaintiff will henceforth be referred to as the Caretaker, and the defendant will henceforth be referred to as the Owners Corporation. A director of the Caretaker, Mr Bo (Robin) Wang, is the second plaintiff.
3. The Strata Plan was registered on 20 March 2001. The building consists of 34 levels from the ground floor up, and 3 levels for parking below. The building predominantly contains residential apartments and associated facilities, and there are also a number of commercial and retail lots.
4. The dispute between the parties arises from the termination of the Caretaker Agreement ("the Agreement") in August 2019. On 17 August 2019 members of the strata committee of the Owners Corporation served a letter of termination of the Agreement upon the Caretaker. The letter stated that the Agreement was terminated with immediate effect pursuant to cl 9.3(iv), which concerns termination if the Caretaker "is guilty of gross misconduct or gross negligence in performing its responsibilities".
5. The Caretaker contends that the Owners Corporation was not entitled to terminate the Agreement. It contends that the conduct of the Owners Corporation in purporting to terminate, and its associated conduct thereafter, amounted to a repudiation of the Agreement, which the Caretaker accepted on 26 August 2019.
6. The Caretaker pursues a claim for loss of bargain damages of about $2 million on the basis that were it not for the repudiation of the agreement by the Owners Corporation, the Agreement would have continued until March 2041. The Caretaker also seeks relief in respect of Lot 179 in the strata scheme. The Caretaker is the registered proprietor of that lot which is located on the ground floor of the building. It was designated as a Caretaker's Lot under the Agreement. It is contended that in circumstances where the Agreement was not validly terminated by the Owners Corporation under cl 9.3, the Owners Corporation is not entitled to invoke the provisions of cl 10 to require the Caretaker to sell the lot to a nominee of the Owners Corporation. Mr Wang makes a similar claim in respect of his Lot 162 in the strata scheme, which is a one bedroom apartment located on level 29. The Caretaker further contends that even if the Agreement was validly terminated under cl 9.3, the Owners Corporation was not entitled to take immediate possession of Lot 179.

The Caretaker Agreement made on 30 March 2001

1. Clause 1 provides: 1. The Owners Corporation engages the Caretaker to perform the duties set out in Schedule 2 in a conscientious, expeditious and workmanlike manner so as to maintain the building and to permit it to be enjoyed to a standard appropriate to a residential development and the Caretaker accepts the engagement upon the terms and conditions of this Agreement.
2. By cl 2 and Item 2 of Schedule 1, the Owners Corporation agreed to pay the Caretaker, in consideration of its performance of the duties specified in Schedule 2, annual remuneration of $360,000 (excluding GST) in equal monthly instalments in arrears. By cl 3, the remuneration was to be varied annually in accordance with movements in the Consumer Price Index. Clause 3.2 provided that at the commencement of the sixth year of the term, and at the expiration of each 5 year period thereafter, the remuneration was to be an amount mutually agreed upon between the Owners Corporation and the Caretaker. Failing agreement, the remuneration was to be determined by an expert (see cl 3.3). It was acknowledged that the remuneration was not to include payment for the provision of leasing, managing and selling agency services conducted by the Caretaker pursuant to cl 4.
3. Clause 4, in effect, gave the Caretaker the right to conduct such services at its own expense, including from the Caretaker's Lots specified in Item 3 of Schedule 1 (see also cl 5). Lot 179 was so specified. (The Caretaker became the registered proprietor of Lot 179 on about 26 July 2001.)
4. Clause 8.1 provided that the Agreement shall be for an initial term of 10 years with an option to renew (vested in the Caretaker by cl 8.2) for three additional terms of 5 years each as specified in cl 8.4. Thus, the initial term extended to 30 March 2011, and if the three options were exercised, the Agreement would extend to 30 March 2026. It was common ground that the Caretaker exercised the options up to 30 March 2021. The option for the period ending on 30 March 2021 was exercised on about 30 June 2015. By cl 8.3, the next option would not have been open for exercise until 30 June 2025.
5. Clauses 9 and 10 are of some significance. They provide: 9.1 This Agreement shall continue in force until it is terminated in accordance with and subject to clauses 9 and 10. … 9.2 (i) The Agreement may be terminated by the Caretaker at any time by giving to the Owners Corporation not less than three (3) months' notice in writing; (ii) The Agreement may be terminated by the Caretaker at any time by notice in writing to the Owners Corporation, should the by-law referred to in Clause 5 be varied or repealed without the consent of the Caretaker. … 9.3 The Owners Corporation may terminate the Agreement at any time by notice in writing to the Caretaker if any of the following occur:- (i) A breach of the Agreement or of a condition of the by-law referred to in Clause 5 is not remedied by the Caretaker within thirty days after written notice (a "Default Notice") has been given to the Caretaker by the Owners Corporation specifying the breach provided that if there is any dispute as to whether a breach has occurred, the matter shall at first instance be referred to mediation under clause 24; (ii) A breach of the Agreement or of a condition of the said by-law is repeated by the Caretaker within three months of a similar breach of which a Default Notice was given to the Caretaker; (iii) An order is made for the Caretaker to be wound up, or the Caretaker enters into a Deed of Arrangement, or a receiver or receiver/manager is appointed to it; (iv) The Caretaker is guilty of gross misconduct or gross negligence in performing its responsibilities; (v) At the request of the Developer if the Caretaker is in default of any of its obligations to the Developer pursuant to the Deed of Sale of Caretaker Management Rights or any security arrangements with the Caretaker's Financier and the Developer has made or makes arrangements for the Caretaker's obligations pursuant to this Agreement to be met; (vi) The proprietor or one of the proprietors of the Caretaker's Lots, recorded on the folio of the Register comprising that lot, is not the Caretaker or any shareholder or director of any Caretaker company (at any time after sixty days from the date of this Agreement), or is not an assignee under this Agreement (at any time after sixty (60) days from the assignment to it); (vii) The Caretaker does not hold any licence (including, if necessary, a restricted real estate agent's licence issued under the Property, Stock & Business Agents Act 1941) or other qualification required for the lawful performance of its responsibilities or exercise of its rights under this Agreement. 9.4 This Agreement may be terminated by the expiration of time. 10. In the event of termination of this Agreement under Clause 9.3:- 1. The Caretaker and/or Guihua Lu must sell or cause the owner(s) of the Caretaker's Lots to sell, together with the Caretaker's interest in this Agreement ('the Caretaker-Management Rights') the Caretaker's Lots to a person nominated by the Owners Corporation; 2. The Owners Corporation may nominate in writing on or before the date being ninety (90) days after the termination of the Agreement, ("the Nomination Period") any person or persons, corporation or corporations ("the Nominee") who shall be deemed to have the right of the first refusal to purchase ("the Right of Pre-emption") from the owners of the Caretaker's Lots in the building together with the Caretaker-Management Rights at such price and upon such terms as are agreed upon between the Caretaker and the Nominee or, failing such agreement, at such price as is fixed as being the fair market value of the Caretaker's Lots and the Caretaker Management Rights by a valuer appointed for the purpose by the Law Society President and on such terms and conditions as are fixed as being the usual ones applicable in such a transaction by a Solicitor appointed for the purpose by the Law Society President. The exercise of the Right of Pre-emption shall be made in writing and served upon the Caretaker within fourteen (14) days after the date of nomination by the Owners Corporation of the Nominee. If no nomination is made by the Owners Corporation within the Nomination Period or if the Right of Pre-emption so created is not exercised then the Caretaker shall be at liberty to affirm this Agreement and to retain the Caretaker's Lots and the Caretaker-Management Rights or to sell the Caretaker's Lots and to assign the Caretaker-Management Rights in accordance with Clause 21. 3. The parties must continue to perform and fulfil all their obligations pursuant to this Agreement during the Nomination Period. 4. The Caretaker must admit the Owners Corporation by its agents, servants and contractors to the Caretakers Lots for the purpose of restoring the lots and its fittings and fixtures to a state of good, serviceable and clean repair. 5. The Caretaker irrevocably appoints the Owners Corporation its attorney for the purpose of doing any act or executing any document necessary for or conducive to the discharge of the Caretaker's responsibilities under this Clause 10. 6. The Caretaker irrevocably consents to the Owners Corporation lodging a caveat over the Caretaker Lots to protect the Owners Corporations interests pursuant to this Clause 10.

The March 2010 Deeds of Variation

1. Deeds of Variation were executed by the Owners Corporation, the Caretaker and Guihua Lu (again, by Michael Wang under power of attorney) on about 23 March 2010 following the Annual General Meeting of the Owners Corporation held on that day.
2. The first Deed of Variation is of lesser significance to the present dispute. By its terms: 1. all references in the Agreement to Guihua Lu were deleted; 2. clause 8.4 was deleted and replaced with a new cl 8.4 which did not alter the existing regime of 3 options for further terms of 5 years; 3. amendments were made to the details in Schedule 1, including the addition of Lot 162 alongside Lot 179 as a Caretaker Lot; and 4. it was confirmed that the current remuneration for the year ending 30 March 2010 was $609,250 plus GST.
3. The second Deed of Variation purported to make changes to the provisions concerning the duration of the Agreement. Clause 2.1 provided: 2.1 Variation to Caretaking Agreement The Owners Corporation and the Caretaker agree to vary the Caretaking Agreement as follows: (a) Vary clause 8.1 by deleting the reference to three (3) additional terms and replacing it with a reference to five (5) additional terms so the clause reads as follows: '8.1 This Agreement shall be for an initial term of ten (10) years with further options to renew this Agreement for five (5) additional terms each of five (5) years duration.' (b) Delete clause 8.4 and replacing it with a new clause 8.4 to read as follows: '8.4 Upon the exercise of each [sic] the options by the Caretaker in accordance with clause 8.3, the Owners Corporation shall grant to the Caretaker the following additional option terms: (i) The first option of five (5) years commencing on the 31 March 2011 and ending on the 30 March 2016; (ii) The second option of five (5) years commencing on the 31 March 2016 and ending on the 30 March 2021; (iii) The third option of five (5) years commencing on the 31 March 2021 and ending on the 30 March 2026; (iv) The fourth option of five (5) years commencing on 31 March 2026 and ending on the 30 March 2031; and (v) The fifth term option of five (5) years commencing on the 31 March 2031 and ending on the 30 March 2036 subject to the same terms, covenants and conditions as are contained in the Caretaking Agreement.' (c) Add the following words to the end of clause 3.3: 'Provided however that the remuneration shall not be less than that received by the Caretaker in the preceding year'.

The validity of the March 2010 Deeds of Variation

1. The Owners Corporation contends that the Deeds of Variation are void because the purported authority to enter into them was granted by a resolution passed at a general meeting of the Owners Corporation in the absence of the required quorum. In this regard, reliance is placed upon cl 11(7A) of Schedule 2 Part 2 of the 1996 Act which at the relevant time provided: 11(7A) A vote by a proxy who is a caretaker, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy. Clause 11(7B) provided: 11(7B) For the purposes of subclause (7A), material benefits include, but are not limited to, the following: (a) an extension of the term or an additional term of appointment of the proxy as caretaker, on-site residential property manager or strata managing agent, (b) an increase in the remuneration of the proxy, (c) a decision of the owners corporation not to proceed with, to withdraw, to delay, to compromise or to settle litigation or other legal proceedings relating to the proxy, (d) any other decision of the owners corporation that affects litigation or other legal proceedings relating to the proxy.
2. Again, it is clear that the terms of the second Deed of Variation, in particular those concerning the additional options to renew, would confer material benefits upon the Caretaker within the meaning of cl 11(7A). The matter in dispute is whether cl 11(7A) operated in such a way that there was no quorum for the relevant resolution in accordance with the requirements of cl 12(2) of Schedule 2 Part 2. Clause 12(2) provides: 12(2) There is a quorum for considering and voting on such a motion or at such an election only if: (a) at least one-quarter of the number of persons entitled to vote on the motion or at the election is present, either personally or by duly appointed proxy, or (b) at least one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present and entitled to vote on the motion or at the election, either personally or by duly appointed proxy.
3. In short, the Owners Corporation submitted that cl 12(2) was not satisfied because all of the proxies recorded in the Minutes were invalid under cl 11(7A) because they were held by persons acting on behalf of the Caretaker as its agent. It was submitted that there was no quorum where only 15 persons entitled to vote on the motion were personally present, and all of the proxy holders in respect of the 99 persons who were present by a proxy could not cast a valid vote on the motion.

The effect of the second Deed of Variation

1. The next issue to consider is the effect the second Deed of Variation had upon the Agreement in respect of its duration. The Owners Corporation contended that the provisions of Part 4A of Chapter 2 of the 1996 Act operated so that the duration was not extended, and was indeed truncated. Those provisions were introduced on 10 February 2003 by the Strata Schemes Management Amendment Act 2002 (which also introduced cll 11(7A) and 11(7B) into Schedule 2 Part 2). Prior to the commencement of this amending statute, caretakers had not been specifically mentioned in the 1996 Act.
2. The key provisions of the new Part 4A are ss 40A and 40B which provide: 40A (1) A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned: (a) managing common property, (b) controlling the use of common property by persons other than the owners and occupiers of lots, (c) maintaining and repairing common property. (2) However, a person is not a caretaker if the person exercises those functions only on a voluntary or casual basis or as a member of the executive committee. (3) A person may be both a caretaker and an on-site residential property manager. 40B (1) A caretaker is required to be appointed by an instrument in writing (a caretaker agreement) executed before or after the strata scheme commenced by the caretaker and: (a) by the original owner, if executed before the strata scheme commenced, or (b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced. (2) Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires: (a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or (b) when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case. (3) The functions of a caretaker under a caretaker agreement may be transferred to another person only with the approval of the owners corporation. A person to whom those functions are transferred is taken to be appointed as a caretaker by the caretaker agreement. (4) An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.

The April 2015 Deed of Variation

1. On 29 April 2015 (in the course of that extended term) the Owners Corporation and the Caretaker entered into another Deed of Variation. Entry into the deed was authorised by a resolution passed at the Annual General Meeting held on that day. Clause 2 of the deed provided for the Agreement to be varied by inserting yet another option to renew, for a five year period commencing on 31 March 2036 and ending on 30 March 2041. Clause 4 of the deed contained a covenant to the same effect as the covenant contained in cl 3 of the March 2010 deeds, namely, that the parties agreed to be bound by the terms and conditions of the Agreement as varied.
2. The Caretaker submitted that if the second Deed of Variation of March 2010 was regarded as an appointment of the Caretaker for a new term then it would follow that the April 2015 Deed of Variation should also be so regarded, in which case the statutory expiry date would become 29 April 2025. The Owners Corporation submitted that this did not follow as the April 2015 deed was not an instrument that appointed the Caretaker for any period of time but rather purported to give the Caretaker a new right being an option to be the caretaker between 2036 and 2041 if it so chose.
3. The April 2015 Deed of Variation is more limited in scope than the second Deed of Variation of March 2010. It says nothing about remuneration, for example. Nonetheless, I think it is an instrument (executed under the authority of a resolution passed at a general meeting) pursuant to which the Caretaker is appointed for a different duration. Instead of a term expiring on 30 March 2016 with options to renew extending to 30 March 2036, there would henceforth be a term expiring on 30 March 2016 with options to renew extending to 30 March 2041. It therefore seems to me that the April 2015 Deed of Variation should also be regarded as a caretaker agreement to which s 40B(2) applied, such that the Agreement as varied by it would expire no later than 29 April 2025. On 30 June 2015, the Caretaker exercised the option to renew for the term ending on 30 March 2021.
4. As I see it, both the second Deed of Variation of March 2010 and the April 2015 Deed of Variation operated in accordance with their terms, but subject to the operation of s 40B(2). That provision would only operate to cause the Agreement to expire if the Agreement had not expired or otherwise ceased to have effect when 10 years have elapsed after the relevant instrument commenced to authorise the Caretaker to act under it. Of course, s 40B(2) was repealed as part of the general repeal of the 1996 Act on 30 November 2016, before that point was reached. It is thus necessary to consider the savings and transitional provisions of the replacement legislation, the Strata Schemes Management Act 2015 (NSW) ("the 2015 Act").

The savings and transitional provisions of the 2015 Act

1. Broadly, the 2015 Act dealt with the same subject matter as the 1996 Act, and in more or less equivalent terms. As far as caretakers are concerned, the 2015 Act employed the term "building manager". Building managers were the subject of Part 4 Division 4 (ss 66 to 70).
2. Building manager is defined in s 66(1) as follows: A building manager is a person who assists in exercising any one or more of the following functions of the owners corporation: (a) managing common property; (b) controlling the use of common property by persons other than the owners and occupiers of lots, (c) maintaining and repairing common property.
3. Unlike the position under s 40A of the 1996 Act, it was no longer a requirement that the person be entitled to exclusive possession of a lot or common property (see s 66(4)).
4. Section 67 provides: 67(1) A building manager may be appointed for a strata scheme. (2) The appointment is to be made by instrument in writing (a building manager agreement) executed before or after the strata scheme commenced by the building manager and: (a) by the original owner, if executed before the strata scheme commenced, or (b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme, if executed after the strata scheme commenced. Section 67(2) can be seen as the equivalent of s 40B(1) of the 1996 Act.
5. The term of appointment of building managers is dealt with in s 68 which provides: 68(1) A building manager agreement (including any additional term under any option to renew it) expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason): (a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed before the meeting, or (b) when 10 years have expired after it commenced to authorise the building manager to act under it, in any other case. (2) A person may be reappointed as building manager for a strata scheme at the end of the person's building manager agreement. (3) The appointment of a building manager may be terminated in accordance with the building manager agreement, if authorised by a resolution at a general meeting of the owners corporation. Section 68(1) can be seen as the equivalent of s 40B(2) of the 1996 Act.

Was the Owners Corporation entitled to terminate the Agreement on 17 August 2019?

1. The Owners Corporation raises numerous matters in support of its contention that it validly terminated the Agreement. There is some overlap here with the Cross-Claim brought by the Owners Corporation, particularly insofar as it is alleged that the Caretaker overcharged for services that it was required to provide under the Agreement. It is convenient to deal first with these allegations of overcharging.

Overcharging

1. The Owners Corporation alleges that in addition to the remuneration to which it was entitled under the Agreement, the Caretaker charged amounts for services that were not "additional services" but were in fact services required to be provided by it under the Agreement. In summary, these amounts were: 1. about $593,000 for an Assistant Building Manager, purportedly appointed in August 2010; 2. about $1.9 million for additional security services, pursuant to a Deed entered into on 2 April 2013 and various other arrangements for such services; and 3. about $210,000 for additional cleaning services, pursuant to various arrangements for such services.
2. Mr Wang gave evidence about the circumstances in which the Assistant Building Manager ("ABM") was appointed. He deposed that since 2008 the Owners Corporation had been involved in litigation with Meriton in relation to certain building rectification works, and the Caretaker (through himself and Mr Di Bitetto) carried out a number of tasks connected with the litigation. Mr Wang was of the view that these tasks were outside the scope of the Agreement. He says that he raised the issue at one or more meetings of the Executive Committee in late-2009 and early 2010, and suggested that an additional person be put on to cover these tasks. It seems that this suggestion, or at least the suggestion that the additional person be paid by the Owners Corporation, was initially met with resistance from some members of the Executive Committee.
3. In May and June 2010, Mr Wang raised the matter with Mr Terrell and later Mr Johnson of the Strata Manager, and he asked Mr Hsueh, then a casual employee of the Caretaker, whether he would be interested in taking on the role of ABM. Mr Hsueh was keen. Mr Wang again raised the issue at a meeting of the Executive Committee on 21 June 2010. It appears that on that occasion, the Executive Committee resolved that the Caretaker would present a proposal at the next meeting on 2 August 2010.
4. The minutes of that meeting record that it was resolved that "the proposal from Mr Hsueh be accepted for the position of assistant building manager", with the Executive Committee approving a maximum wage of $55,000 plus superannuation. I note in passing that of the five committee members present, three were associated with the Caretaker, namely, Mr Wang, Mr Di Bitetto, and Ms Liu.

Breaches of cl 18.2 of the Agreement

1. Clause 18 of the Agreement provides: 18.1 The Caretaker must not seek or accept instructions from the Owners Corporation about the performance of its responsibilities except from the Owners Corporation's strata managing agent or from a person who has been appointed by the Executive Committee for this purpose. 18.2 The Caretaker, or where the Caretaker is a corporation, any shareholder or director of the Caretaker, shall not offer himself for election as an office bearer of the Executive Committee of the Owners Corporation.
2. The Owners Corporation alleges that the Caretaker acted in flagrant disregard of cl 18.2 over a lengthy period of time, from August 2004 (when Mr Wang was elected as a member of the Executive Committee) until June 2019 (when Mr Wang ceased to be a member of the Executive Committee). Complaint is also made about other persons associated with the Caretaker who served on the Executive Committee during that period.
3. There is no doubt that the Caretaker has breached cl 18.2. The Caretaker admits that some breaches have occurred, when Mr Wang (who has been a director of the Caretaker since 18 February 2005) served as the treasurer of the Executive Committee for one year from June 2018, and Mr Tsiprin-Reznik (a director of the Caretaker since 23 January 2017) served as the secretary of the Executive Committee for one year from June 2018.
4. The differences between the parties as to the extent of the breaches derives from differing views as to the proper construction of cl 18.2. First, the Owners Corporation submits that the expression "office bearer of the Executive Committee" refers to persons who offer themselves for election as members of the Executive Committee, whereas the Caretaker submits that the expression refers only to persons who offer themselves for election as chairperson, treasurer or secretary of the Executive Committee. Secondly, the Owners Corporation submits that cl 18.2 should be read as extending to persons acting at the direction of or on behalf of the Caretaker (such as Mr Di Bitetto), whereas the Caretaker submits that there is no warrant to go beyond any shareholder or director of the Caretaker.
5. The task of construction is of course to be approached in accordance with the well-established principles for the construction of written commercial agreements, as laid down in cases such as Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[52]).

Failures to disclose in relation to Executive Committee elections

1. Related to the preceding topic, the Owners Corporation complains that on numerous occasions persons connected with the Caretaker breached the applicable strata titles legislation by failing to disclose the connection, as required by the legislation, prior to seeking election to the Executive Committee. The Owners Corporation contends that these failures amounted to breaches of an implied term of the Agreement to the effect that the Caretaker would in performing its duties under the Agreement comply with the statutory requirements applicable to the management of strata title schemes.
2. In relation to the 1996 Act, the relevant provision was cl 3A(1) of Schedule 3. This provision commenced operation on 1 August 2008. It provides: 3A(1) A person who is connected with the original owner or caretaker of a strata scheme is not eligible to be elected as a member of an executive committee for the strata scheme unless: (a) the person discloses the connection that the person has with the original owner or caretaker, and (b) the disclosure is made at the meeting of the owners corporation at which the executive committee is to be elected and before the election is conducted. Under the relevant definition found in cl 7 of Part 2 of the Dictionary to the 1996 Act, a person is connected with another person (referred to as the principal person) if the person is employed by the principal person, or the person is a director of or holder of an executive position within the principal person (being a corporation).
3. Following the repeal of the 1996 Act and the commencement of the 2015 Act on 30 November 2016, the relevant provision became s 32(1) of the 2015 Act. It relevantly provides: 32(1) The following persons are not eligible for appointment or election to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme: … (c) a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed to act as a member… Under the relevant definition found in s 7 of the 2015 Act, a person is connected with another person (referred to as the principal person) if the person is employed by the principal person or if the person holds an executive position (which includes a director) within the principal person (being a corporation).

Misuse of proxies

1. The Owners Corporation alleges that at numerous Annual General Meetings in the period from 3 May 2005 to 18 June 2018, the Caretaker misused proxies held by it, or by persons acting at its direction or on its behalf, in order to secure benefits for itself. Leaving aside the Annual General Meeting of 3 May 2005, the relevant proxies were held, not by the Caretaker itself, but by persons associated with it.
2. The Owners Corporation contends that this conduct breached implied terms of the Agreement not to use its position as Caretaker to benefit itself, and to comply with applicable statutory requirements in performing its duties under the Agreement.
3. In relation to the latter alleged term, the Owners Corporation claims that the votes of the various proxies were invalid pursuant to cl 11(7A) of Schedule 2 Part 2 of the 1996 Act. Presumably, it is further said that, for that reason, the votes ought not have been cast. I have already held that cl 11(7A) only applies in respect of votes by a proxy who is a caretaker. As noted above, the only relevant votes by the Caretaker as a proxy were the votes cast at the Annual General Meeting held on 3 May 2005, when Mr Wang was elected to the Executive Committee.
4. This is significant in relation to the first of the alleged implied terms. In order to establish a breach of the term it must be shown that the Caretaker has used its position in a particular way so as to obtain a benefit. That has not been done in relation to the votes of the various individuals as proxies. As noted earlier in these reasons, where an employee or agent of the Caretaker is appointed by someone else as a proxy, the employee or agent, in voting as a proxy, is exercising an authority conferred by the appointor rather than acting in the course of its employment or other agency. The mere existence of an employment, agency or other representative relationship with the Caretaker does not establish that votes by those persons as proxies are the result of some use by the Caretaker of its position. The Owners Corporation did not refer to any particular evidence beyond that which showed the relationship between the Caretaker and the individuals who held the proxies. No reference was made to the particular circumstances in which the individuals were appointed as proxies. I am prepared to assume that the Agreement contains a term to the effect of the first alleged implied term (cf Waldorf Apartment Hotel The Entrance Pty Ltd v Owners Corporation SP 71623 [2010] NSWCA 226 at [53]), but I am not satisfied that the Caretaker has breached the term.

Breaches of cl 21.1 of the Agreement

1. The Owners Corporation alleges that the Caretaker breached the Agreement by not disclosing to the Owners Corporation various changes in its shareholding which occurred in about November 2001, February 2011, January 2015 and February 2018. The Owners Corporation contends that this conduct constituted breaches of cl 21 of the Agreement. Clause 21 provides: 21.1 The Caretaker may not assign this Agreement without the consent under seal of the Owners Corporation which consent will not be unreasonably withheld. The Owners Corporation will grant its consent to the assignment of the Agreement to a natural person who is, or to a company whose directors are to the reasonable satisfaction of the Owners Corporation: i) Respectable and of appropriate personal qualities; ii) Solvent; iii) Licenced or capable of becoming licenced and possess qualifications, as required for the lawful performance of the Caretaker's responsibilities under this Agreement; 21.2 A change in the shareholding of the Caretaker which alters the effective control of the Caretaker shall constitute an assignment of this Agreement. 21.3 Upon assignment, the Caretaker must be released and discharged from any further liability under this Agreement but without prejudice to the rights and remedies of either party arising in respect of any matter or thing occurring prior to the date of assignment.
2. The Owners Corporation submitted that the changes in shareholding of the Caretaker altered the effective control of the Caretaker within the meaning of cl 21.2, such as to constitute an assignment of the Agreement. It was then said that cl 21.3 operated so as to release and discharge the Caretaker from any further liability under the Agreement, and that the Agreement terminated accordingly.
3. There is evidence, in the form of Annual Returns and Change to Company Details forms, which show that there have been changes in shareholdings in the Caretaker substantially as alleged. I say substantially as alleged because some of the Change to Company Details forms (in particular, the numbers given for "Shares Increased by") are difficult to reconcile and may be inaccurate, or otherwise indicate that the evidence is incomplete. Nevertheless, even if the shareholdings at various times are as alleged by the Owners Corporation, I do not think that it has been shown that any change in shareholding has altered the effective control of the Caretaker within the meaning of cl 21.2.

Improper use of electricity

1. It is clear that the Caretaker has never paid for any of the electricity that has been supplied to Lot 179, one of the Caretaker's Lots under the Agreement. The electricity has always been paid for by the Owners Corporation. It seems that there has never been a separate meter measuring the electricity supplied to Lot 179. I think that it is open to infer that such electricity likely forms part of an amount of electricity that is supplied to the Owners Corporation in respect of the common property and billed to the Owners Corporation accordingly. Lot 179 is located on the ground floor of the building which is otherwise largely comprised of common property.
2. Mr Wang gave evidence that until August 2019 the Caretaker occupied Lot 179 and used it in connection with the provision of services under the Agreement and the operation of its real estate agent's business. It is not clear how much electricity was supplied to Lot 179 (and its monetary value) over the more than 18 year period since the making of the Agreement, but it may be presumed to be substantial having regard to the fulltime nature of the obligations under the Agreement and the evidence of the electrical appliances used in Lot 179 which included computer equipment and an air-conditioning unit.
3. The Owners Corporation submitted that the consumption of this electricity without the agreement or authorisation of the Owners Corporation breached implied terms of the Agreement and is conduct that justifies termination of the Agreement by the Owners Corporation, either because it is gross misconduct within the meaning of cl 9.3(iv) or otherwise repudiatory.
4. Mr Wang deposed, in his affidavit of 5 December 2019 (which deals with the expenses of the businesses of the Caretaker) that the electricity expense "has always been met" by the Owners Corporation. In his affidavit of 29 May 2020, Mr Wang deposed: Since about 2001, Lot 179 has been supplied with electricity from The Summit's electricity mains. Within Lot 179 is a large air conditioning compressor unit that is approximately 3 cubic metres in size and provides air conditioning to the entire ground floor of The Summit, including the lobby and mail room. To the best of my knowledge, it has never been alleged that ACPM [the Caretaker] was required to pay for electricity supplied to Lot 179 and I understood this was not required due to the presence of the air conditioning unit within Lot 179 and due to ACPM providing caretaking services from Lot 179.

Failures in respect of fire safety

1. The Owners Corporation make two complaints about the conduct of the Caretaker in relation to fire safety. The first is the failure to implement an evacuation plan for the building. The second is the failure to take timely action in the face of evidence of faults in the fire alarm system (referred to as the Emergency Warning and Intercommunication System, or "EWIS").
2. It is clear that no evacuation plan had been prepared by August 2019. The Owners Corporation submitted that since 2013 the Caretaker was aware of the need for such a plan. In this regard, reference was made to a Fire Order issued by the City of Sydney Council on 18 November 2013. The Fire Order required various works to be undertaken, including making provision "for safe and effective emergency egress in the event of fire". In relation to emergency egress, the stated reasons for the order were: Means of egress 2. Lack of fire separation between car park and lift lobbies on levels 2-6, which serve as means of egress for occupants of residential apartments, could cause fire spread to these areas and subsequently endanger life safety of evacuating occupants, in the event of a fire in the car park; 3. Signs to warn persons against interference with fire doors leading to fire isolated stairs and smoke doors are not installed on all of these doors; 4. Direction or exit signs are not installed on smoke doors from both sides to guide evacuating occupants to emergency exits; 5. Fire isolated exits are not provided with re-entry facilities to ensure occupants are not trapped and have the ability to re-enter the building, in case of an emergency
3. The receipt of the Fire Order was noted in the minutes of an Executive Committee meeting held on 21 November 2013 as follows: It was noted that a Fire Safety Order had been received on the day of the meeting from City of Sydney Council. Bannermans Lawyers are required to liaise with council due to the fire defects being part of the claim against Meriton. There are significant additional legal and expert costs involved with addressing the Order as a side issue to the proceedings…
4. The Executive Committee resolved that the strata manager request that Bannermans Lawyers request as long as possible extension to comply with the order whilst legal proceedings were on foot. It can be inferred that at least some of the works required by the Fire Order related to the allegedly defective works the subject of the litigation against Meriton.

Provision of unsafe working conditions for cleaners

1. The Owners Corporation alleges that the Caretaker breached cl 17 of the Agreement and also cll 1(f) and 1(l) of Schedule 2 to the Agreement, and was guilty of gross misconduct and/or gross negligence in allowing contracted cleaners to make use of a garbage room on Level 5 to fraternise and store goods.
2. Garbage is deposited into the room on Level 5 from garbage chutes from higher levels. There was evidence to suggest that on occasions some of the cleaners may have retrieved items from the garbage and retained them for their own use, although this was not witnessed directly by Mr Hsueh. Mr Hsueh agreed that no action was taken to prevent the cleaners from following this unhealthy practice. He further agreed that the matter was not reported to the Executive Committee.
3. Mr Hsueh provided an account in his affidavit of the manner in which cleaning services were provided (see paragraphs 38-63). It emerges from this account, which was essentially unchallenged, that the cleaners (who were acting under the direction and control of the director of the cleaning company) had access to clean areas of the building to take breaks (including the Level 1 Recreation Room) and they had access to bathrooms. Mr Hsueh explained that due to a lack of allocated storage space in the building, the cleaners made use of the Level 5 garbage room to store cleaning equipment and consumables, and used it as their "operating base". Mr Hsueh said that this room, which requires a key for access, is not used by lot owners or occupiers. Mr Hsueh observed that the cleaners sometimes put items that had been disposed of by lot owners and occupiers in this room before taking them away. He said that very occasionally directions were given by the Caretaker to move such items out and tidy up the room.
4. I am not satisfied that any breach of the Agreement has been established as alleged. I agree with the submission of the Caretaker that cl 17 does not require the Caretaker to ensure adequate supervision of the cleaners who were contractors, not employees or agents of the Caretaker. As for cl 1(f), I do not think that any identified hazard or danger has been identified that would be required to be reported promptly. As for cl 1(l), I do not think it has been shown that the Caretaker failed to take any steps that are reasonable or necessary in the interest of maintaining the overall presentation, upkeep and appearance of the Complex. Even if any breach of these provisions was established, the breaches would not in my view be of sufficient seriousness to amount to gross misconduct or gross negligence.

Storage of inappropriate and hazardous materials in plant rooms

1. There is evidence that some combustible materials were allowed to be stored in plant rooms. This was seen as a problem by the new caretaker appointed in August 2019. It appears that the new Building Manager (Mr Smaimi) initially took steps to remove offending materials, but as a result of complaints (presumably from residents responsible for some of the storing) he has allowed the situation to continue as it was "until a solution is found". Mr Smaimi agreed that after a year he has still not found an acceptable solution. He said that the matter is a priority but at this point he has a lot of issues to deal with. It seems likely that the lack of allocated storage space, referred to in evidence by Mr Hsueh, may be causing or contributing to the problem.
2. The Owners Corporation did not identify which provision or provisions of the Agreement were alleged to be breached by the Caretaker. It was not suggested that the Caretaker failed to comply with any direction given to it about storage in plant rooms (see cl 1(i) of Schedule 2). It may be that the Caretaker should have reported the situation to the Executive Committee as a hazardous or dangerous situation (see cl 1(f) of Schedule 2). It may be that if the Caretaker was itself storing combustible items in plant rooms, it would be contrary to its general duties to maintain and care for the strata scheme and be responsible for the overall presentation of the Complex (see cll 1(a) and 1(l) of Schedule 2). However, having regard to the evidence of Mr Hsueh concerning the limited extent to which access or use of the rooms was impeded, and Mr Smaimi's evidence about allowing the situation to continue, even if there was a breach or breaches of the Agreement I could not be satisfied that the conduct of the Caretaker amounted to gross misconduct or gross negligence.

Other matters

1. The Owners Corporation raised numerous other matters of alleged mismanagement which were said not to amount to gross misconduct, gross negligence or repudiatory conduct, but were nonetheless said to be relevant to be taken into account in the overall assessment of the Caretaker's conduct. Many of these matters were ultimately not pressed, or were not the subject of any submissions. The remaining matters (with the possible exception of the padlock on a fire door on Level P1) seem to be of only minor significance.
2. The Owners Corporation again did not identify which provisions of the Agreement were alleged to be breached. As for the padlock on the fire door, there was a paucity of evidence as to how and when it came to be there, or as to any danger it posed. Mr Hsueh suggested that it might have been put on by "the fire guys", and deposed that IFS had not said that it should be removed. I cannot be satisfied that there was any breach by the Caretaker of the Agreement in this respect.
3. These other matters do not seem to me to take the matter any further in circumstances where I have found that the Owners Corporation otherwise had the right to terminate the Agreement on 17 August 2019 pursuant to cl 9.3 (see [171] and [217] above).

Validity of termination of Agreement by the Owners Corporation

1. The next issue to consider is whether the Owners Corporation validly exercised the right to terminate the Agreement on 17 August 2019.
2. The purported termination was communicated to the Caretaker by letter dated 17 August 2019 that was served upon the Caretaker at Lot 179. The letter, which was signed by the treasurer of the Strata Committee, Mr Lowe, included the following: I have been instructed by the strata committee of SP65111 to serve this letter to your company. … Given the 18 years your company has been managing the Building, its current state of disrepair, the current health, safety and fire issues and the complete lack of proper management, the strata committee has formed the opinion the Caretaker has been guilty of gross misconduct and/or gross negligence in performing its responsibilities. … The strata committee on behalf of the Owners Corporation has resolved that the caretaker agreement is terminated pursuant to Clause 9.3(iv), effective immediately. As per the terms of the caretaker's agreement 10.5 the owners corporation is IRREVOKABLY appointed attorney for the caretaker's lots, being lot 179 of SP65111 which consists of the reception and office room behind. Accordingly, entry upon lot 179 will be a trespass. Your company, its employees, contractors and agents are no longer permitted to enter Lot 179 and any plant room. Entry upon lot 179 or any restricted plant room area will be a trespass. Should you have any query relating to this matter, please contact our treasurer.
3. Service of the letter occurred the day after the Strata Committee met and resolved to terminate the Agreement forthwith. However, as I have held, the Agreement was a building manager agreement for the purposes of the 2015 Act (see at [66] above). Accordingly, the Agreement became subject to s 68(3) of the 2015 Act which provides: The appointment of a building manager may be terminated in accordance with the building manager agreement, if authorised by a resolution at a general meeting of the owners corporation.
4. It follows that the Agreement could only be terminated in accordance with its terms if authorised by a resolution of a general meeting of the Owners Corporation. No such authority was given in advance of the service of the letter of termination. A resolution authorising the termination was not passed at a general meeting of the Owners Corporation until 31 January 2020. On that occasion, a resolution was passed in the following terms: 2. CARETAKER TERMINATION Resolved that the Owners Corporation resolve that, to the extent necessary, the termination of the Caretaker Agreement entered into on 30 March 2001 and/or 31 March 2011 and/or 31 March 2016 be authorised and/or ratified.

The operation of cl 10 of the Agreement

1. Under cl 10.1 the Caretaker is obliged to sell the Caretaker's Lots, or cause the owners of the Caretaker's Lots to sell the lots, to a person nominated by the Owners Corporation. On 22 August 2019 the Owners Corporation nominated itself pursuant to cl 10.2 as the person to purchase the Caretaker's Lots, and thus is deemed to have rights of first refusal to purchase the Caretaker's Lots.
2. It is envisaged by cl 10.2 that the parties will then seek to agree upon a price and other terms, failing which the price is to be fixed by a valuer appointed pursuant to the clause. The envisaged process appears not to have progressed beyond the nomination stage. The Caretaker has at all times denied that cl 10 had been engaged. I have concluded that this is not correct. It seems to me that the parties are bound to follow the process laid down by cl 10.
3. There are some outstanding issues concerning the Caretaker's Lots. The Caretaker contends, correctly in my view, that even if the Agreement was validly terminated pursuant to cl 9.3, it remains entitled to possession of Lot 179 until completion of the cl 10 process. Clause 10 does not in terms confer any right of possession upon the Owners Corporation (or a person nominated as a purchaser), and cl 10.4 rather suggests that the Caretaker is to remain in possession, albeit that the Owners Corporation is entitled to access for certain purposes. The cl 10 process does not inevitably conclude with the Owners Corporation having ownership of the Caretaker's Lots. In my opinion, the Owners Corporation does not acquire any rights of possession in respect of the Caretaker's Lots otherwise than pursuant to a purchase in accordance with the process.
4. Since 19 August 2019 the possession of Lot 179 has been regulated by interlocutory orders made by the Court. Leaving aside the brief period between 17 August 2019 and 19 August 2019, the Owners Corporation has been in possession of Lot 179 since 22 August 2019 pursuant to an order made by the Court on 21 August 2019. The Owners Corporation gave the usual undertaking as to damages in respect of that order.
5. I think that declarations and orders should be made, to recognise that the Caretaker remained entitled to possession of Lot 179 notwithstanding the valid termination of the Agreement on 17 August 2019, and to compensate the Caretaker for loss sustained as a result of the Owners Corporation taking possession. The question of compensation will be returned to in the next section of these reasons.

Compensation for deprivation of possession of Lot 179

1. The Caretaker relied upon the valuation evidence of Mr David Bird who assessed Lot 179 as having a gross rental value of $28,500 p.a. The Owners Corporation relied upon the valuation evidence of Mr Peter McSwiggan who assessed Lot 179 as having a gross rental value of $18,700 p.a.
2. Mr Bird's report included the following: The subject comprises the area of Lot 179 in SP65111 contained on the ground floor, being some 30 square metres. It would appear at the current date to consist of an area of space off the main foyer entry to the apartments, as this foyer leads through to the inner lift foyer area. From the limited inspection available, and reference to the strata plan, it includes within its [sic] an area the reception counter desk and open sitting area behind, and the room to its rear occupied as a back office for building management/reception staff. The Fire Control Room noted as common property of the strata plan bounds the lot to its rear, with doorway access through from this space. … My rental valuation assessment as per my specific instructions in this matter, is based upon an analysis of comparable rentals, the most relevant set out in the table following at 4.0 Market Evidence & Analysis; The rental assessment is considered on the basis of the space having a continued usage as is current, and on the presumption this is permissible under the consideration of the Owner's Corporation & by all relevant By-Laws; Given the nature of the subject lot, I have no evidence of directly comparable leasing or asking rental of similar use space, and thus I have had to widen my search parameters; I have firstly sought evidence of ground floor small scale lots, in arcade or lobby situations, or at the upper end footpath take-away of café rentals. It is acknowledged that these should generally provide a higher range on a rate per square metre, given their retail or café potential and superior exposure to pedestrian traffic; … As a second point of reference, I have considered B grade or similar office space and suites on upper floors of commercial buildings within the broader precinct, of which there is an abundance of evidence; … The subject provides some 30 square metres of space, with an open reception desk and behind it a single office room, with basic sink/cupboard unit; Whilst not able to be considered as retail or café space, it provides an essential ground floor lobby area for building and apartment management and reception; Its smaller scale nature demands a rental premium, and combined with its ground floor reception lobby position, should see it considered at a rate above that of typical office space, whilst below that of reduced scale arcade retail or café space; Having considered a broad range of evidence, I would assess a current rental rate at say $950/sq m gross.

Other matters

1. The conclusions I have reached concerning the termination of the Agreement mean that the Caretaker's claim for loss of bargain damages must fail. However, in case my conclusions are wrong, and for completeness, I will briefly state how I would have assessed those damages if the Owners Corporation had wrongfully terminated the Agreement.
2. The Caretaker claimed damages for loss of profits that would have been earned under the Agreement. The damages were claimed in respect of a period ending on 30 March 2041. The amount claimed was about $1.96 million, based on the calculations made by Mr Russell, which were themselves essentially based on unchallenged evidence given by Mr Wang. There is no reason not to accept Mr Russell's calculations as accurate.
3. I accept, based on Mr Wang's evidence, that the Caretaker would have exercised the options to renew the Agreement as they arose. However, I have held that the Agreement, as varied by the deeds in 2010 and 2015, would by virtue of s 68(1) of the 2015 Act expire no later than 29 April 2025 (see [68] above). Mr Russell calculated the lost profits to 30 April 2025 as $1,216,881. Adjusting for one day would reduce the figure to $1,216,518.
4. The Owners Corporation submitted that any assessment of loss of profits had to take into account the prospect that the Agreement would be terminated as a result of an application made under s 72 of the 2015 Act. I agree that such a prospect is a matter that must be taken into account (see Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27 at [37]).
5. Under s 72(1) of the 2015 Act the Civil and Administrative Tribunal ("the Tribunal") may, on the application of an owners corporation for a strata scheme, make an order terminating a building manager agreement. The grounds for such an order are specified in s 72(3). They include that the building manager has performed the agreement unsatisfactorily, and that the agreement is in the circumstances "otherwise harsh, oppressive, unconscionable or unreasonable".
6. It should be assumed for the purposes of this exercise that any breaches of the Agreement by the Caretaker or other conduct of the Caretaker, falls short of gross misconduct or gross negligence, or repudiatory conduct. That is to say, whatever the defaults or deficiencies of the Caretaker they do not justify termination by the Owners Corporation either under cl 9.3(iv) or at common law. The defaults or deficiencies might, however, constitute unsatisfactory performance for the purposes of s 72(3). It would also be open to the Owners Corporation to assert (as it does) that aspects of the Agreement, for example the level of remuneration, operated harshly or oppressively for the purposes of s 72(3).

Conclusion

1. A declaration will be made to the effect that on 17 August 2019 the Owners Corporation validly terminated the Agreement pursuant to 9.3 thereof. A declaration will also be made to the effect that upon such termination, the provisions of cl 10 of the Agreement operated and bound the parties accordingly. A further declaration will be made to the effect that in the events that happened, the Caretaker remained entitled to possession of Lot 179. The order of the Court made on 21 August 2019 that allowed the Owners Corporation to re-take possession of Lot 179 will be discharged.
2. An order will be made requiring the Owners Corporation to permit the Caretaker to resume possession of Lot 179 within 7 days. In addition, orders will be made for the Owners Corporation to pay damages of $7,840 (plus interest) to the Caretaker, and $24,600 in compensation pursuant to the usual undertaking as to damages. A judgment will be entered accordingly. The Further Amended Statement of Claim will otherwise be dismissed. The Cross-Claim will also be dismissed.
3. As the Court has concluded that the parties are bound by cl 10 of the Agreement, there will be a grant of liberty to apply in respect of any issues that may arise in the course of the completion of the process laid down by cl 10.
4. As for costs, it is apparent that each party has enjoyed at least some success, and has otherwise failed. The Court will direct the parties to confer and seek to reach an agreement upon the appropriate orders as to costs. If agreement is not forthcoming, the Court will give directions for the making of submissions on costs.

Amendments 04 February 2021 - Coversheet (Representation) amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 04 February 2021