Boswell v Forbes & Ors (Civil Claims) [2008] VCAT 1997

1. As against the respondents David Foat and Landmark Operations Limited, the proceeding is dismissed.

2. If the applicant wishes to allege that by 1 March 2009 the owners corporation (the interested party) has not passed a special resolution granting to Terry Murphy a licence to occupy part of the common property described in Plan of Subdivision PS449390E, the applicant may, by giving notice in writing to the principal registrar after 1 March 2009 but no later than 30 April 2009, renew this proceeding to apply for an order that Terry Murphy and/or the owners corporation do or refrain from doing something. If the proceeding is renewed it shall be heard by me.

3. If the proceeding is not renewed by 30 April 2009 it shall stand dismissed.

For the First, Second, Third & Fourth, Seventh and Eighth Respondents:

1. In these reasons for decision
   • (a) unless the context indicates otherwise, "the owners corporation" means Caswellan Estate Owners Corporation PS 449390E;
   • (b) "the Plan of Subdivision" means registered Plan of Subdivision PS 449390E;
   • (c) References to lots and to lot numbers are references to those described and identified in the Plan of Subdivision;
   • (d) unless the context indicates otherwise, "the common property" means the common property identified in the Plan of Subdivision;
   • (e) "Landmark" means the sixth respondent, Landmark Operations Limited, which trades as a real estate agency under the name Landmark Real Estate;
   • (f) "the model rules" means the rules set out in Schedule 2 of the Owners Corporations Regulations 2007, prescribed by regulation 8 as model rules for an owners corporation;
   • (g) "the 2001 regulations" means the Subdivision (Body Corporate) Regulations 2001.
2. Caswellan Estate, an area of two acres or so at the corner of Lawrence Street and Gibson Street, Port Albert, consists of 11 residential units. Until December 2002 or thereabouts they were let as holiday homes. In mid-2001 the then owners decided to subdivide the land and sell the units. For that purpose they registered the Plan of Subdivision. Each of the 11 units became a lot described and identified by number in the Plan of Subdivision. Upon the registration, the owners corporation (then called a body corporate) came into being and had the obligation of administering the common property.
3. The applicant, Ian Munro Reid Boswell, is the owner and occupier of Lot 7. He purchased it in 2002 and took possession of it on 16 December 2002.
4. The respondents to the proceeding have become so either by having been named in the initiating application or by having been joined by orders made in the course of the proceeding. They are:

Real estate agency trading as Landmark Real Estate; manager of the owners corporation in 2004 and 2005.

1. The owners corporation has been joined as an interested party.
2. Mr Boswell is in dispute with the owners corporation and with most, if not all, of the respondents. In outline, the disputes are these:
   • Parking on common property. A lot owner, Terry Murphy, parks his boat in a garage which is part of the common property. Mr Boswell objects to that use and has asked for an order preventing it.
   • Former manager's conflict of duty and interest. Either Landmark, or its officer David Foat, was the manager of the owners corporation between about March 2004 and June 2005. Mr Boswell alleges that because during that time Landmark acted also as selling agent for Mr and Mrs Olesen in the sale of Lot 4 to Mr and Mrs Murphy there was a conflict of duty (to the owners corporation) and interest. He alleges that as a consequence of that conflict Mr Murphy was encouraged to think that he had purchased a right to park his boat where he does park it.
   • Financial management. Mr Boswell alleges that accounts kept for the owners corporation have been inaccurate and that its financial management has been improper. The persons against whom he makes that allegation are the owners corporation itself, Landmark and Mr Foat, and Ms Phillips and Mr Hemming who are now involved in the owners corporation's administration and financial affairs even though there is no appointed manager.
   • Gardening. Mr Boswell alleges that the owners corporation has incurred unnecessarily high gardening expenses and has improperly paid for the gardening of land which is outside the Caswellan Estate and so not the owners corporation's responsibility.
   • Laundry. Mr Boswell objects to the way in which lot owners have been allowed to use a laundry situated on the common property.
   • Fees. Mr Boswell alleges that the fees currently levied by the owners corporation upon lot owners, and which he is being asked to pay, are excessive and have been levied invalidly.
3. One way or another, each of these disputes is "an owners corporation dispute" as defined in section 162 of the Owners Corporations Act 2006 which, under Part 11 of the Owners Corporations Act, VCAT has jurisdiction to hear and determine. Nobody has suggested otherwise.
4. I heard the proceeding on 28 August 2008. Mr Boswell appeared in person. By leave, Mr Ferrari of Counsel appeared for Mr Foat and for Landmark. All the other respondents appeared in person (although Mr Murphy represented his wife, who was not present at the hearing). There was no appearance for the owners corporation, the interested party. Evidence was given by Mr Boswell, Mr Foat, Ms Phillips, Mr Murphy and Mr Hemming. At the end of the hearing I reserved my decision.

1. Although nobody has suggested that VCAT does not have power to hear and determine the various disputes outlined above, the jurisdiction conferred upon VCAT is novel and it is desirable that I say something about it.
2. The Owners Corporations Act commenced operation on 31 December 2007. On that date, the bodies formerly called bodies corporate (created when certain plans of subdivision were registered) became styled as owners corporations.
3. Part II Division 1 of the Owners Corporations Act (sections 162 to 169, inclusive) deals with owners corporation disputes. Section 162 confers the relevant jurisdiction upon VCAT. It provides:

VCAT may hear and determine a dispute or other matter arising under this Act or the regulations or the rules of an owners corporation that affects an owners corporation (an owners corporation dispute) including a dispute or matter relating to -

(b) an alleged breach by a lot owner or an occupier of a lot of an obligation imposed on that person by this Act or the regulations or the rules of the owners corporation; or

(c) the exercise of a function by a manager in respect of the owners corporation.

1. The regulations referred to in section 162 are the Owners Corporation Regulations 2007. Regulation 8 provides that the rules set out in Schedule 2 of the regulations are prescribed as model rules for an owners corporation.
2. Section 139(2) of the Owners Corporations Act provides, in effect, that unless an owners corporation has made other rules (by special resolution pursuant to a power conferred by section 138) the model rules are the rules of the owners corporation.
3. Section 165(1) of the Owners Corporations Act provides that in determining an owners corporation dispute VCAT may make any order it considers fair including one or more of various kinds of orders enumerated as paragraphs (a) to (m). The only paragraphs which I think need to be mentioned at present are as follows:

(1) In determining an owners corporation dispute, VCAT may make any order it considers fair including one or more of the following -

(a) an order requiring a party to do or refrain from doing something;

(b) an order requiring a party to comply with this Act or the regulations or the rules of the owners corporation;

(i) found to be owing by one party to another party; ...

(i) appointing a person (with the person's consent) as manager of the owners corporation, on specified terms and conditions; ...

1. Section 167 of the Owners Corporations Act provides:
   1. What must VCAT consider?

VCAT in making an order must consider the following -

(b) an act or omission or proposed act or omission by a party;

(c) the impact of a resolution or proposed resolution on the lot owners as a whole;

(d) whether a resolution or proposed resolution is oppressive to, unfairly prejudicial to or unfairly discriminates against, a lot owner or lot owners;

1. At all material times the legislation governing the creation of bodies corporate or owners corporations has provided that when a plan of subdivision is registered the owners for the time being of the lots specified in the plan are members of the body corporate or owners corporation. The statutory provision presently to that effect is section 28(1) of the Subdivision Act 1998.
2. At all material times the same legislation has also provided that the common property identified in a registered plan of subdivision vests in the lot owners for the time being as tenants in common in shares proportional to their lot entitlement. The statutory provision presently to that effect is section 30(1)(a) of the Subdivision Act 1998. The owners corporation is registered as proprietor of the common property (see section 31(1) of the same Act) and so is the legal owner, but the lot owners, as tenants in common in their proportional shares, are the equitable or beneficial owners: _Body Corporate No.1/PS 40911511E St James Apartments v Renaissance Assets Pty Lt_d (2004-5) 11 V.R. 41.
3. One of the functions of an owners corporation specified in section 4 of the Owners Corporations Act is the function to manage and administer the common property.
4. Section 5 of the Owners Corporation Act provides:
   1. Owners corporation must act in good faith

An owners corporation in carrying out its functions and powers-

1. Part 4 Division 7 of the Owners Corporations Act deals with decisions of an owners corporation and how they are made. The principle demonstrated there is that, except in circumstances in which a unanimous resolution or a special resolution is required, decisions are made by ordinary resolution, that is to say, by a simple majority of members voting at a meeting or by ballot, with one vote for each lot.
2. Ordinarily, therefore, a lot owner is obliged to accept, and is bound by, a majority decision properly made, and cannot expect VCAT to determine an owners corporation dispute in a way that would overturn such a majority decision.
3. Some of the provisions of the Owners Corporations Act mentioned above give pointers to circumstances in which VCAT might determine an owners corporation dispute in a way contrary to a majority decision of the members.
4. First, the inclusion in the definition of "an owners corporation dispute" (in section 162) of an alleged breach of an obligation imposed by the Owners Corporations Act, or the regulations or rules, reflects that an owners corporation and its members are required to conduct themselves according to law. If during the hearing of an owners corporation dispute it is established that an owners corporation or one of its members has acted in breach of the law, VCAT might well make an order designed to remedy the breach or to prevent a further breach, even if the conduct constituting the breach had been approved by a majority of members.
5. Secondly, there is the requirement for an owners corporation to act honestly and in good faith (section 5). If it should be established that an owners corporation, even though acting in accordance with a decision of a majority of members, was not acting honestly or in good faith (because, for example, the purpose was to benefit persons who had no legitimate interest in the affairs of the owners corporation) then VCAT might well make an order designed to remedy any loss caused by the conduct or to prevent such conduct in future.
6. Thirdly, the requirement in section 167(d) for VCAT to consider whether a resolution is "oppressive to, unfairly prejudicial to or unfairly discriminates against" a lot owner or lot owners indicates that it might well be appropriate for VCAT to make a determination that was contrary to a majority decision of the members if that decision was oppressive, unfairly prejudicial or discriminatory.
7. Subject to considerations such as those mentioned in the last three paragraphs, majority decisions ought to be allowed to prevail, and it will usually be futile for an applicant to VCAT to argue that a majority decision was wrong and that VCAT should interfere with it.
8. Against that legal background I proceed to deal with the various disputes outlined in paragraph 6 above.

1. Marked on the Plan of Subdivision is an area adjacent to Mr Boswell's unit (Lot 7). The area is divided into four rectangles. A shed encloses the area. The southernmost of the four rectangular smaller areas is used as a store room. The other three are used, or are available to be used, as garages for vehicles.
2. During the hearing the following matters were not in dispute. As to the first or northernmost of the three garages, Mr Boswell has ownership rights of some kind. The next or middle garage, directly to the south of Mr Boswell's garage, is part of the common property. This is the disputed garage. At present Mr Murphy occupies it. He parks his boat there. As to the third garage, to the south again of the disputed garage, the owners of Lot 8 (Mr and Mrs Proctor) have ownership rights of some kind. Further to the south again there is the store room; it is part of the common property.
3. Mr Boswell has asked me to make an order that would have the effect of preventing Mr Murphy from occupying the disputed garage.
4. It has not always been the case that everybody has agreed that the disputed garage is part of the common property, even though the Plan of Subdivision so identifies it. For some years there was an erroneous belief that the owners of Lot 4 from time to time had ownership rights of some kind over the disputed garage. The erroneous belief was reflected in the following paragraph in the minutes of a meeting of members of the owners corporation held on 7 December 2002, at which Mr Boswell was present:

10. It has been minuted that owner of No. 4 is the owner of garage in the middle of the triple garage. This garage remains the property of No. 4 even if ownership changes.

1. There is no need for me to canvass the question of how part of the common property may be transferred validly to one of the lot owners absolutely. All I need to say is that it cannot be done simply by recording in the minutes of a meeting that it has happened.
2. Mr and Mrs Olesen became the owners of Lot 4. On some date in 2004 or 2005 they sold Lot 4 to Mr and Mrs Murphy. Although I was not shown any contract documents, I inferred from the evidence of Mr Boswell, Mr Foat and Mr Murphy that the contract of sale reflected the erroneous belief and purported to include a sale of ownership rights over the disputed garage. Mr Foat gave evidence, which I accept, that Mr and Mrs Olesen had engaged his firm Landmark as their selling agents for Lot 4 when it was first put on the market, but by the time that the sale to Mr and Mrs Murphy was effected Landmark was no longer the vendors' agent.
3. I was not told when and how the members of the owners corporation came to realize that the belief was erroneous, or when Mr Boswell first challenged Mr Murphy's right to use the disputed garage. Eventually, at a meeting of members on 27 January 2007, at which Mr Boswell was not present, the members passed a resolution designed to demonstrate majority approval of Mr Murphy's use. The resolution was:

Middle Garage in 3 Bay Garage: It was moved by Graeme Hemming and seconded by Mary Murphy, that while ownership of this middle garage remains with Body Corporate, that Lot 4 will have possession and use of it as per original intention minuted in Item 10 of minutes of Body Corporate meeting held on 7th December 2002. This possession and use will continue with Lot 4 even when ownership of Lot 4 changes. Votes - all agreed.

1. Ms Phillips gave evidence, and I accept, that the persons present and voting in favour of the resolution on 27 January 2007 were entitled to seven votes and that the persons (including Mr Boswell) who were absent and did not vote were entitled to four votes.
2. Section 14 of the Owners Corporations Act provides:

14. Leasing or licensing of the common property

By special resolution, an owners corporation may lease or license the whole or any part of the common property to a lot owner or other person.

There was a similar provision, regulation 218(1) of the 2001 regulations, in force on 27 January 2007 (although the final phrase "to a lot owner or other person" did not appear in it).

1. Arguably the resolution of 27 January 2007 was one that purported to grant a licence to Mr and Mrs Murphy to occupy and use the disputed garage to the exclusion of other members of the owners corporation. It was not, however, a special resolution. Section 96 of the Owners Corporations Act defines a special resolution as a resolution passed by 75% of the total votes or lot entitlements. The 2001 regulations contained, in regulation 194, a similar definition. The votes cast at the meeting on 27 January 2007 did not amount to 75% of voting entitlements.
2. Accordingly, the strict legal position appears to be that the owners corporation has not validly granted a licence to Mr and Mrs Murphy to occupy and use the disputed garage to the exclusion of other lot owners. Each of the lot owners, including Mr Murphy and Mr Boswell, has an equal right to use and occupy the disputed garage at the moment.
3. Rule 3.1(1) of the model rules is:

(1) An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.

1. Because no licence has been granted validly, the strict legal position appears to be that Mr Murphy is in breach of rule 3.1(1), because he is obstructing the lawful use and enjoyment of the disputed garage by the other lot owners or occupiers. On the evidence, the only person who cares to make any point about this is Mr Boswell, but it is a point he is entitled to make.
2. At first sight, rule 3.2 of the model rules, headed "Vehicles and parking on common property" might seem applicable, but on examination it is not. I set it out.
   • 3.2 Vehicles and parking on common property

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle -

1. to be parked or left in parking spaces situated on common property and allocated for other lots; or
2. on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or
3. in any place other than a parking area situated on common property specified for that purpose by the owners corporation

1. I assume that Mr Murphy's boat is a "vehicle" and that the disputed garage is a "parking space". The disputed garage is not, however, a parking space "allocated for other lots" (i.e. other than Lot 4) and appears to conform to the description of "a parking area situated on common property specified for that purpose". That is why I say that rule 3.2. is not applicable and Mr Murphy is not in breach of it.
2. From time to time the owners corporation has created, or has purported to create, rules other than the model rules. They do not, however, purport to replace or vary any of the model rules, and so it is the model rules that are applicable to the issue being discussed.
3. Even though Mr Boswell has a valid point at the moment, there are two reasons why, as the matter stands at present, I do not propose to make any order that would affect Mr Murphy's right to occupy the disputed garage.
4. The first reason is that there is every chance that the owners corporation will pass in the near future a special resolution that grants a licence. Ms Phillips' evidence demonstrated that. She told me that the members had become aware of the requirement for a special resolution and had contemplated holding a meeting to propose such a resolution, but had had a concern that it might be improper to do that while the hearing of this proceeding was pending.
5. The second reason is that Mr Boswell's evidence revealed that his objection to Mr Murphy's use of the garage was not that Mr Murphy was merely preventing all other lot owners or occupiers from exercising their equal right to use it, but rather than Mr Murphy was standing in the way of him (Mr Boswell) using it for his own purposes. He told me that he intended to pursue whatever legal avenue was open to him to acquire ownership rights over the disputed garage. It seems to me at the moment that making an order that would affect Mr Murphy's right to occupy might create a new problem for the owners corporation, similar to the present problem, in that it might embolden Mr Boswell to try to exclude all other lot owners and occupiers so that he alone could use the disputed garage. He is not being deprived of a right to use a garage. He has his own. Whether properly made or not, a decision to permit Mr Murphy to use the disputed garage is not oppressive, prejudicial or discriminatory in relation to Mr Boswell.
6. Nevertheless, I acknowledge that if within a reasonable time the owners corporation does not pass a special resolution that validly creates a licence, the first reason will have lacked cogency. What I propose to do, therefore, is to give Mr Boswell the right to renew this proceeding, as against all respondents except Mr Foat and Landmark, if he wishes to allege that no such special resolution has been passed by 1 March 2009. He may have until 30 April 2009 to renew the proceeding for that purpose if he wishes. I am not saying that I am likely to make any order that he seeks if he does renew the proceeding. The second reason given above may still be decisive. And the explanation for the resolutions not having been passed may show that there are other reasons why no order should be made.

1. When alleging that the owners corporation's former manager had a conflict of duty and interest, Mr Boswell identified Mr Foat as the manager in question. The case put forward on behalf of Mr Foat and Landmark was that Landmark, not Mr Foat personally, had been the manager. No document was produced to me that assisted in the determination of who was the manager. Minutes of a meeting of members held on 29 February 2004 referred to an agreement to approach "David Foat from Landmark, Yarram" to manage the owners corporation.
2. Experience tells one that it is usually a real estate company, not an individual within that company, which is appointed to manage an owners corporation, even if the individual does all the work. Mr Foat gave evidence, and I accept, that he personally did not do all the management work for the owners corporation, and that much of the work was done by other office staff. For those reasons I find that the manager was Landmark, not Mr Foat personally. Landmark was the manager for a time that commenced shortly after the meeting of 29 February 2004 and concluded in June 2005 when it resigned.
3. Mr Foat also gave evidence, and I accept, that Mr and Mrs Olesen had engaged Landmark, not him personally, as selling agent for the sale of Lot 4 and that, although he personally had been involved in the early marketing of Lot 4 on their behalf, by the time that Lot 4 was sold to Mr and Mrs Murphy the agency agreement had been terminated and the sale was a private sale.
4. Mr Boswell has alleged that the dual role, as manager of the owners corporation and selling agent for Mr and Mrs Olesen, created a conflict of duty and interest, and that in the course of that conflict Mr Foat helped to create a belief that the purchasers of Lot 4 would acquire a right to use the disputed garage to the exclusion of others. Because Landmark's involvement had ceased years ago, I asked Mr Boswell what orders he was asking me to make if I concluded that his allegations had been proved. His answer, as I understood it, was that he did not want me to make any order; he just wanted to expose wrongdoing and wanted me to make the appropriate findings of fact.
5. No doubt there will be cases in which a real estate agent has an actual or a potential conflict of duty and interest when the agent acts at the same time as the owners corporation manager and as selling agent for a lot owner. I do not see that there must always be a potential conflict in those circumstances and I am not persuaded that there was any potential conflict in Landmark's case. I am quite satisfied that there was no actual conflict. By the time that the sale of lot 4 occurred Landmark was no longer the selling agent and the question of an interest in obtaining a commission from the sale jeopardizing a performance of the duty owed to the owners corporation did not arise. I am prepared to infer that from his knowledge of the owners corporation's records, as well as from any instructions given to Landmark from its vendor clients, Mr Foat gained the erroneous belief that the clients could sell rights over the disputed garage and played a part in Mr Murphy gaining that erroneous belief. Nevertheless, that inferred fact does not, to my mind, establish any potential or actual conflict and Mr Boswell has not persuaded me that any legal consequences should flow now from that fact.
6. Accordingly the proceeding will be dismissed as against Mr Foat and Landmark.

1. Mr Boswell gave evidence that for the first financial year of the owners corporation's existence, having been told that the fees payable by lot owners were $1,040.00 per annum, he paid fees at that rate, only to discover that the other lot owners had been paying only $500.00 for that year. He achieved a refund of the difference (except for $40.00). I got the impression that it had been that unhappy experience which caused him to have no confidence in the financial management of the owners corporation ever since, whether before, during or after Landmark's involvement. He has made, and repeated during the hearing, the allegation that the accounts have been inaccurate and that the financial management has been improper, to the extent that the owners corporation has been insolvent from time to time.
2. In support of his allegations Mr Boswell produced a handwritten accounting document that he had prepared after having examined the books of account of the owners corporation. The document is not easy to follow. Mr Boswell did not attempt to explain the entries in it during the hearing, apart from saying that $2,261.00 had been recorded wrongly in the books of account as a deposit. He did not go on to explain the significance of that error (if that is what it was).
3. At present Ms Phillips is looking after administrative matters for the owners corporation, although no manager has been appointed since Landmark resigned, and Mr Hemming is the treasurer. They gave evidence of those matters.
4. Ms Phillips produced to me an auditor's report, and an accompanying statement of receipts and payments, prepared by Duesbury Gippsland, accountants, for the period from 12 December 2002 to 30 June 2008. The auditor's report is dated 15 July 2008. It recorded that the owners corporation had submitted a financial report and that the audit of it "included examination, on a test basis, of evidence supporting the amounts and other disclosures in the financial report". The opinion expressed at the end of the auditor's report was:

In our opinion, the financial report presents fairly in accordance with the cash basis of accounting, as described above, the payments and receipts of the Caswellan Estate Body Corporate for the period from 12th December 2002 to 30th June 2008 and its cash and bank balances at that date.

1. The auditor's report does not prove that the owners corporation's books of account are free from error. The examination was made "on a test basis" only. But if, as Mr Boswell has alleged, there was long-standing and continual inaccuracy, impropriety and insolvency, and the books of account provide evidence of it, it would be most surprising that an audit done by a reputable firm of accountants, even on that limited basis, failed to detect any of that evidence. I consider that if there are or have been any shortcomings at all in the financial management of the owners corporation they are unlikely to have been of any great moment.
2. On the subject of financial management Mr Boswell has not established any facts which could justify me making any order.

1. From time to time the owners corporation has engaged professional gardeners to assist in the maintaining of the common property as well as (at first but no longer) the gardens that belong to the various lots. The gardening expenses have been substantial. The statement of receipts and payments that accompanied the auditor's report showed that the total expenditure of the owners corporation between 12 December 2002 and 30 June 2008 was $26,442.93 and that, of that sum, $12,154.23 went towards gardening.
2. Mr Boswell's first complaint is that the gardening expenses were unnecessarily high and gardeners could have been engaged on a more economical basis. The answer to his complaint is that, whether or not one agrees with his point of view, the decisions as to choice of gardener are those kinds of majority decisions with which members who are in the minority have to live and with which VCAT ought not to interfere. There was nothing in the evidence which was remotely suggestive of oppressive, prejudicial or discriminatory decision-making as to gardening. The decisions appeared to have impacted equally upon all lot owners.
3. Mr Boswell's second complaint is that the gardening expenses included the cost of gardening of land which is outside the boundaries of the Caswellan estate and is, or ought to be, the responsibility of the local municipal council. Ms Phillips gave evidence that the members of the owners corporation had decided to mow a strip of land outside the boundaries so that a fire break was created. Mr Boswell's evidence suggested that the gardening about which he complained was more extensive than that.
4. Whether gardening expenses for land outside the boundaries of the Caswellan Estate were properly incurred for fulfilling a function or obligation of the owners corporation is a matter for legitimate enquiry. However, in view of Ms Phillips' evidence, which I accept as giving at least part of the explanation for the decision to incur those gardening expenses, I am not prepared to find that they were not properly incurred. At all events Ms Phillips gave evidence, and I accept, that it is now about three years since the owners corporation has incurred gardening expenses of that kind, because now the lot owners themselves are doing the mowing of the land outside the boundaries.

1. Caswellan Estate has a laundry block building which is situated on the common property. The holiday-home history of the units on the estate may explain the apparent fact that not every unit has a laundry and that some of the lot owners need to use the laundry block.
2. Mr Boswell has an objection to some of the lot owners using the laundry. I am afraid that I did not understand what the objection was. He spent much more time on other matters during his evidence and barely mentioned this one. On the face of things each lot owner would have just as much right as any other lot owner to use the laundry. If there is some reason why that is not so, I have not understood it.

1. The owners corporation has levied fees which lot owners are required to pay at six monthly intervals. Mr Boswell has alleged that he is presently being asked to pay $650.00 per year, that the levying of the fee is invalid, and that a proper fee should be $306.00 per year.
2. Ms Phillips gave evidence that fees have been levied by resolution of members at meetings, including the annual general meeting held on 27 January 2008 when the members resolved upon a special levy of $265.00. The minutes of that meeting seem to authorize the levying of fees totalling $665.00 for the current year, including that special levy of $265.00. At the end of the evidence I have remained uncertain, however, of exactly what the fees are.
3. The reason which Mr Boswell put forward for the levying of fees having been invalid was that some lot owners who had voted in favour of the levying of fees were "unfinancial" and so were not entitled to vote. When I asked Mr Boswell what evidence he had that they were "unfinancial", his answer was, in substance, that the owners corporation did not always have the funds to pay its expenses and that financial mismanagement was the reason for that. I have concluded, therefore, that by saying that some members were "unfinancial" Mr Boswell meant that the owners corporation was in a precarious financial position at the time that votes were taken, not that members had fallen into arrears with their fees. At all events, Mr Boswell did not produce any evidence that any member who had voted at any relevant meeting was in arrears with fees and therefore not entitled to vote. He has not established that any resolution passed at a meeting of members was invalid.
4. As to whether the amounts, whatever they are, of fees levied by the owners corporation are excessive, I consider that the members themselves are far better placed than I to decide what the fees should be. There was no evidence that Mr Boswell was being singled out unfairly for the payment of high fees or that fees were being levied in any oppressive, prejudicial or discriminatory manner. Rather, Mr Boswell's assertion was that all lot owners were being asked to pay higher fees than they should have been asked to pay. I did observe that when calculating what fees should be levied the owners corporation is making a provision for professional gardening expenses even though those expenses are not being incurred at present. Whether such a conservative approach should be taken is arguable, but Mr Boswell seems to have lost the argument when he raised it with the other lot owners. He also mentioned that the fees contain a provision for the cost of security lighting whereas only some members obtain the benefit of the lighting but he does not. All those matters, in my opinion, are properly left for a majority decision of members and no good reason has been shown why VCAT should interfere with it.
5. Mr Boswell asked me to declare that the proper fee was $306.00 per year. For reasons given above I decline to do so.
6. On the other hand, I am not deciding what the fee is or should be. Still less am I deciding how much, if anything, Mr Boswell owes in fees. If an owners corporation wishes to obtain an order from VCAT for the payment of fees it must comply with provisions of the Owners Corporations Act with respect to the giving of fee notices and then make a formal application for the order. That has not happened.

1. Except on the subjects of Mr Murphy's use of the disputed garage and the amounts of the fees levied upon lot owners, Mr Boswell did not ask me to make orders for the payment of money to him by any respondent or to make any other particular orders. For all other subjects of dispute his desire seemed to have been to expose wrongdoing and to have me find that wrongdoing had occurred.
2. Because some of the subjects of dispute related to financial management, because there is no professional manager for the owners corporation at present, and because Mr Boswell is in dispute with those persons who presently are attending to administrative and financial matters, I asked him whether he wished to apply for an order under section 164(1) (i) of the Owners Corporations Act for the appointment of a manager. He told me that he did not, and that he thought that the appointment of a manager was unnecessary.
3. I do not mean to imply that I think that a manager ought to be appointed. Ms Phillips impressed me. In particular, I was impressed by her evidence that she paid for the auditor's report herself, when other members refused to pay for it out of owners corporation funds, so that Mr Boswell's allegations about errors in the accounts could be addressed. I am satisfied that the affairs of the owners corporation are being attended to conscientiously at the moment.

1. As against Mr Foat and Landmark, the proceeding will be dismissed.
2. Otherwise, I shall make an order that will enable Mr Boswell to renew this proceeding by no later than 30 April 2009 if he wishes to allege that by 1 March 2009 the owners corporation has not passed a special resolution granting to Mr Murphy a licence to occupy part of the common property. If the proceeding is not renewed by that date it shall stand dismissed.