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……………………………….. Senior Member M Hyman REASONS FOR DECISION

Introduction 1. Mr Alan Duncan, the applicant in this matter, owns a unit in the strata title property identified as Units Plan 355 and known as Macquarie Court. Mr Duncan drafted a motion to be put before the Annual General Meeting (AGM) of the owners corporation of Units Plan 355 on 12 March 2025, setting out changes he proposed should be made to the rules of the Macquarie Court complex. The motion was defeated, 14 owners having voted against it. Mr Duncan applied to this tribunal on 20 August 2025 under section 129(1)(g) of the Unit Titles Management Act 2011 (the UTM Act), seeking that his motion, or a motion essentially the same, should be passed. The motion having been defeated at a meeting of the owners corporation, that body becomes the respondent.

2. The Tribunal heard the matter on 3 December 2025. The applicant appeared in person, and made submissions in support of his case. He was accompanied by Mr Will Brehm, Mr Jim Nockels, and Mr Eric Dallas, members of the Executive Committee of the Owners Corporation, who provided general comment on his application; Mr Daniel Lescovec, the strata manager for Macquarie Court, appeared remotely, making himself available to clarify matters if needed. Those who had opposed the applicant’s motion at the AGM had not sought to be joined as parties, and did not appear. They had, however, made submissions explaining their opposition to one of the proposed amendments. These submissions constitute the case for the respondent.

3. Mr Duncan filed an organised bundle of papers relating to the application, including a submission, a list of cases he considered relevant, the motion put to the AGM, the existing rules of the units plan, and those rules marked up with proposed amendments. Other relevant documentation before me is his application and attachments to that application, including the wording of the defeated motion and his explanations of the proposed amendments, which were included in the papers that went to the AGM. The owners corporation filed papers that provided a clearer picture of the AGM process, including the papers for and minutes of the AGM held on 12 March 2025. Nine opponents of the defeated motion filed a joint submission, signed by each of them on 3 or 4 November 2025 (the joint submission); one of the nine, Ms Asha Belkin, made an additional submission dated 7 November 2025 (the Belkin submission).

Issues

4. The issues before the Tribunal for decision in this matter are: (a) the merits of the motion put by the applicant at the AGM held on 12 March 2025; (b) whether opposition to that motion at the AGM was unreasonable; and (c) if so, whether the motion should be passed, as it was put or with amendments.

Legislative framework

5. There are three statutes providing for the establishment, registration and management of strata title properties in the ACT: the Unit Titles Act 2001 (the UTA), the Land Titles (Unit Titles) Act 1970 and the UTM Act. The first provides the foundation for strata title arrangements, especially at the time of their construction and when they first become occupied as residential complexes; the second provides, relevantly, for the registration of units plans and of their rules; the UTM Act provides the operational structure of strata title management once a property is established and occupied. For present purposes the UTM Act is the major statute relevant to the issues in dispute; but the other two statutes also have a bearing on them.

6. Under the UTM Act, an owners corporation (OC) is established for each units 1 2 plan, and the OC — a corporate body with legal personality — is responsible 3 for managing the units plan. The members of the OC are the owners of the 4 units. The functions of the OC include enforcing its rules and managing 5 common property; property management in turn includes maintenance of

1 UTM Act, s 8 2 UTM Act, s 9 3 UTM Act, s 7 4 UTM Act, s 10 5 UTM Act, s 16 6 property, some of which is specified. The OC acts most of the time through an 7 executive committee, elected by the members.

7. An OC for a units plan must have an administrative fund, for general 8 9 administrative expenditures, and a sinking fund, used for maintenance and 10 associated purposes.

8. The rules for a units plan consist of a set of default rules, as modified under the UTM Act; alternative rules must be registered under the Land Titles (Unit 11 Titles) Act 1970. Alternative rules may be agreed to by the OC, by special resolution, in a number of prescribed areas, but the scope of any alteration is 12 constrained by the UTM Act. The effect of the rules is that each unit owner is taken to have entered into an enforceable agreement with the OC to abide by 13 them. The default rules are set out in the Unit Titles (Management) Regulation 14 2011.

9. Where a dispute arises, whether among owners or between owners and the OC, or involving the executive committee, manager or service contractors, a party to the dispute may apply to the ACT Civil and Administrative Tribunal (ACAT) for resolution of the dispute. The ACAT is given a wide range of specific 15 16 powers to resolve disputes; the list is not exhaustive. Section 129(1)(g) provides that the ACAT may make “an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable”.

6 UTM Act, s 24 7 UTM Act, Division 4.1 8 UTM Act, s 73 9 UTM Act, s 81 10 UTM Act, ss 83, 88 11 Land Titles (Unit Titles) Act 1970, ss 7, 27, 27A; UTM Act, s 106 12 UTM Act, s 108 13 UTM Act, s 107 14 Unit Titles (Management) Regulation 2011, s 7A, Schedule 1 15 UTM Act, s 129(1) 16 UTM Act, ss 129(2), 129(5)

10. Under the UTA, units are identified on the units plan, in the title application before registration, or, after the units plan is registered, as Class A or Class B 17 units. A unit title application must seek the division of a parcel into Class A or 18 Class B units, but not both. The meaning of Class A and Class B units is explained by section 18: 18. Unit title applications—class A units and class B units (1) A unit title application must show any class A unit as part of a building, with boundaries defined by reference to the floors, walls and ceilings of the building as shown in the application. (2) A unit title application must show any class B unit as land that has boundaries unlimited in height except to the extent of any encroachment at, above or below ground level by another part of the parcel. The applicant’s motion

11. The Rules of Macquarie Court consist of two sets: a set of 12 derived from, and in most cases identical to, the default rules set out in Schedule 1 of the Unit Titles (Management) Regulation 2011 (Rules 1.1 to 1.12); and a further set of 12 dealing with other aspects of the complex (Rules 2.1 to 2.12). The matters covered by the further set of 12 include, for example, the approvals needed for execution of documents by the strata manager or Executive Committee, and use and security of common property.

12. Mr Duncan proposed 10 amendments to the rules of Macquarie Court. He proposed that each amendment should be put separately before the AGM, but the Executive Committee chose to present all the amendments as a single motion. This was Item 22 of the AGM held on 12 March 2025 (motion 22, or the unsuccessful motion). Mr Duncan proposed a second motion, Item No. 23, but the further motion, was not put to the meeting, for reasons which are explained below (motion 23 or the unput motion).

13. Motions 22 and 23 read as follows: 22. RULE CHANGES (Adoption) Special Resolution

17 UTA, ss 10, 11 18 UTA, s 17(3)(a) That the Owners Corporation resolve by Special Resolution to approve all proposed changes to the Owners Corporation Rules numbers 1.4, 1.12, 2.2, 2.3, 2.4, 2.5, 2.9, 2.10 & 2.11, including the formatting of the Rules document, as outlined in the attached document titled UP Explanation of Rule Changes and Rules Changes. 23. RULES (Registered) Ordinary Resolution That the Owners Corporation resolve by Special Resolution that should Motion 22 above be resolved and carried to:- 1. Rescind any existing registered Owners Corporation Rules. 2. Authorise the Executive Committee (EC) to approve an updated consolidated set of Owners Corporation Rules (Strata Manager to consolidate and provide to EC shortly after the AGM) and for this updated consolidated set of Owners Corporation Rules to be registered with Access Canberra in accordance with Section 108 of the Unit Titles (Management) Act, 2011. (The consolidated set of Owners Corporation Rules will be placed on BuildingLink for reference). 3. Accept that the updated set of Owners Corporation Rules referred to in point 2) above, will superseded and replace all other Rules previously in force. 4. Adopt and adhere to the Owners Corporation Rules as the Rules of the Owners Corporation

14. The Macquarie Court Rules, with proposed amendments marked (proposed added text in bold, proposed deleted text in [strikethrough] and square brackets) 19 are as follows:

[Schedule 1] Part 1. Rules aligned with or derived from the default rules of Schedule 1 of the Unit Titles (Management) Regulation 2011. 1.1 Definitions. [—default rules] (1) In these rules: Owner, occupier or user, of a unit, includes an invitee or licensee of an owner, occupier or user of a unit. (2) A word or expression in these rules has the same meaning as in the Unit Titles (Management) Act 2011. 1.2 Payment of rates and taxes by unit owners A unit owner must pay all rates, taxes, and any other amount payable for the unit. 1.3 Repairs and maintenance 19 For reasons of clarity, text originally bolded for presentational reasons, such as headings, is left unbolded (1) A unit owner must ensure that the unit is in a state of good repair. (2) A unit owner must carry out any work in relation to the unit, and do anything else in relation to the unit, that is required by a territory law. 1.4 Erections and alterations (1) A unit owner may erect or alter any structure in or on the unit but only— (a) in accordance with the express permission obtained in an unopposed resolution of the executive committee or (if the executive committee is unable to come to a resolution, then) a special resolution of the owner’s corporation; and (b) in accordance with the requirements of any applicable territory law (for example, a law requiring development approval to be obtained for the erection or alteration). (2) Permission obtained in accordance with Rule 1.4(1)(a) may be given subject to conditions stated in the resolution. (3) However, if the structure is sustainability infrastructure, the owner’s corporation’s permission must not be unreasonably withheld. Examples—permission not unreasonably withheld • safety considerations • structural considerations • financial consideration • equity of access to common property, easements, facilities or utility services Examples—permission unreasonably withheld (a) An installation of a hard floor in a Class B unit. (b) An installation of an air conditioner or an antenna where the installation meets the guidelines for such an installation. [external appearance of a unit or the unit’s plan] (4) A unit owner must notify the Strata Manager or [and] the executive committee if any material containing asbestos is discovered in the course of the erection or alteration of any structure in or on the unit, or in or on the common property. 1.5 Pets in units (1) A unit owner must not keep, or permit to be kept, any animal within the unit, without approval by a resolution of the executive committee. (2) The executive committee must not withhold approval under Rule 1.5(1) unreasonably. (3) Approval given under Rule 1.5(1) may be given subject to stated conditions. (4) Approval given under Rule 1.5(1) may be withdrawn by a resolution of the executive committee or by a special resolution of the owner[’]s corporation. 1.6 Assistance animals An occupier or user of a unit who keeps an assistance animal must provide the executive committee or the Strata Manager with evidence that the animal is an assistance animal. If the occupier or user of the unit is not the owner of the unit, the occupier or user must also provide the owner of the unit with that evidence. 1.7 Use of common property A unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier, or user of another unit, other than in accordance with a special privilege rule. 1.8 Hazardous use of unit A unit owner must not use the unit, or permit it to be used, to cause a hazard to an owner, occupier, or user of another unit. 1.9 Use of unit—nuisance or annoyance (1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit. (2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use. (3) Permission may be given subject to stated conditions. (4) Permission may be withdrawn by special resolution of the owner[’]s corporation. 1.10 Noise (1) A unit owner must not make, or permit to be made, such a noise within the unit as might (in the circumstances) be reasonably likely to cause substantial annoyance to an owner, occupier, or user of another unit. (2) This rule does not apply to the making of a noise if the executive committee has given the person responsible for making the noise written permission to do so. (3) Permission may be given subject to stated conditions. (4) Permission may be withdrawn by special resolution of the owner[’]s corporation. 1.11 Illegal use of unit A unit owner must not use the unit, or permit it to be used, to contravene a law in force in the ACT. 1.12 What may an executive committee representative do? (1) The executive committee may give a written authority to a person (an executive committee representative, as defined in regulation 1.12(4) of Schedule 1 of the Unit Titles (Management) Regulation 2011) to represent the owners corporation under this Rule. (2) [(1)] An executive committee representative may do any of the following in relation to a unit at all reasonable times: (a) if the committee has reasonable grounds for suspecting that there is a breach of the Act or these rules in relation to a unit— inspect the unit to investigate the breach; (b) carry out any maintenance required under the Act or these rules; (c) do anything else the owners corporation is required to do under the Act or these rules. (d) the executive committee or the representative has given the owner, occupier or user of the unit reasonable notice of his or her intention to do the thing; or (b) in an emergency, it is essential that it be done without notice. (3) [(2)] An executive committee representative may enter a unit and remain in the unit for as long as is necessary to do something mentioned in sub-rule (2). [(1)]. (4) [(3)] An executive committee representative is not authorised to do anything in relation to a unit mentioned in sub-rule (2) [(1)] unless— (a) the executive committee or the representative has given the owner, occupier or user of the unit reasonable notice of his or her intention to do the thing; or (b) in an emergency, it is essential that it be done without notice. [The executive committee may give a written authority to a person to represent the corporation under this rule.] [executive committee representative means a person authorised, in writing, by the executive committee under rule 1.12 (4). ] [executive committee representative, for schedule 1 (Default rules)—see schedule 1, rule 1.1. owner, occupier or user, of a unit, for schedule 1 (Default rules)—see schedule 1, rule 1.1.] [Alternative Rules 2] [alternative rules means rules other than the default rules] Part 2. Additional Rules agreed by the Owners Corporation. 2.1 Execution of Documents. (1) The Strata Manager is allowed to sign all statutory documents required under the Act, including Section 119 certificates and notices of reduced quorums. (2) The Executive Committee must approve the signing of all other documents, such as contracts and service agreements. 2.2 Contributions (levies) and other monies owing [Interest on Outstanding Levies]. (1) If any contribution (levy) determined by the owners[’] corporation or any other money[s] owing to the corporation is [are] not paid within a grace period of forty-five (45) days from [of] the due date for payment of a contribution, or from the date of a notification to the owner that such other money is owing, then the amount due [overdue] will attract interest at a rate of 15% per annum from the last day of the grace period [the levy or other payment falls due] until such time as the contribution or other money[s] and the interest accrued since the end of the grace period [due date] have been paid. (2) The owner of a unit in respect of which all amounts payable to the Owners Corporation have not been paid before the start of a General Meeting of the Corporation (a) is not entitled to vote on a motion at a General Meeting of the Owners Corporation (including the Annual General Meeting of the Owners Corporation), and (b) is not entitled to be elected, or to be proposed or nominated for election to the Executive Committee, or to be co-opted to serve as a member of the Executive Committee or any other committee or subcommittee of the Owners Corporation, until the owner has paid all amounts owing to the Owners Corporation. 2.3 Recoupment of Costs of Debt Collection. (1) If the owners[’] corporation incurs legal or other costs in any legal or ACT Civil and Administrative Tribunal [administrative] action against a unit owner [holder], including action to recover amounts owing pursuant to section 95 of the Unit Titles (Management) Act 2011, then, provided the legal or ACT Civil and Administrative Tribunal [administrative] action was commenced by the owners[’] corporation in good faith, the unit owner [holder] shall be liable to pay the owners[’] corporation the full amount of any legal fees or other costs incurred in that legal or ACT Civil and Administrative Tribunal [administrative] action. (2) The unit owner [holder] agrees that any monies which are payable pursuant to Rule 2.3(1) shall be a debt enforceable by the owners[’] corporation against the unit owner. (3) Notwithstanding Rules 2.3(1) and 2.3(2), the owner[’]s corporation shall not be entitled to recover any legal fees or other costs from the unit owner unless the owners corporation first provides to the unit owner a copy of invoices or, where the amount has already been paid by the owners corporation, receipts to evidence the amount due or paid by the owners[’] corporation. If the unit owner [holder] fails to pay the legal fees or other costs in accordance with Rule 2.3(1) [clause 1], the owners corporation may declare that a charge is to be imposed over the lease of the unit to secure payment of those costs and the unit owner shall not be entitled to object or seek to remove the registration of that charge over the lease of the unit. 2.4 Correspondence All correspondence and notices, including correspondence for [For] the purpose of giving notice of a general meeting under the provisions of Schedule 3, Section 3.6 of the Unit Titles (Management) Act 2011, [notices] and all other general correspondence will be sent to unit owners by email to an email address notified to the Strata Manager for this purpose by the owner. If no email address is notified [nominated] to the Strata Manager, such correspondence and notices [the notice] will be sent by post. 2.5 Maintenance of Class B Units [– Maintenance] Each owner of a Class B unit is responsible for the [The] maintenance of external parts of the Class B Unit building. However, the Owners Corporation will pay for [including the roof, guttering, fascia boards, downpipes, courtyard walls, and balconies is included in the maintenance covered by the Sinking Fund of Units Plan No. 355, in addition to] : (a) the painting of the external walls of the Class B u[U]nits when the painting of the external walls of the Class A u[U]nits is carried out; and (b) the clearing of the roof gutters on the Class B u[U]nits when the clearing of the roof gutters on the Class A u[U]nits is carried out; and (c) the cleaning of the outside surfaces of the difficult to reach windows on the Class B u[U]nits when the cleaning of the outside surfaces of the difficult to reach windows on the Class A u[U]nits is carried out; and (d) the trimming, in consultation with the gardener for Units Plan No. 355, of the hedges outside [in] the courtyards of the Class B u[U]nits; and (e) the maintenance of the roof, guttering, fascia boards, downpipes, courtyard walls, and balconies of the Class B units; but no other painting or maintenance of the external parts of the Class B units. Notes: (1) By special resolution (Motion 5) of the Annual General Meeting of the Owners[’] Corporation held on 31 May 2011, the owner[’]s corporation will cover [covers] the cost of the painting of the exterior of the building containing the Class B units, and the cleaning of the outside surfaces of the difficult to reach windows and the clearing of the gutters of the Class B units, as detailed in sub-rules (a), (b) and (c) of Rule 2.5; but not any other painting or maintenance of that building. (2) By special resolution (Motion 8.b) of the Annual General Meeting of the Owners Corporation held th on 18 February 2020, the Owners Corporation agreed to cover the cost of the additional maintenance of the Class B units detailed in sub-rules (d) and (e) of Rule 2.5. 2.6 Residential Purpose All units are to be used for residential purposes only, except as allowed under the ACT legislation. 2.7 Short-Term Rental Accommodation Short-term rental accommodation through rental platforms including (but not limited to) Airbnb, Stayz and VRBO is not permitted. Owners must let their u[U]nits using the residential tenancy agreements including the prescribed terms and conditions under the Residential Tenancy Act 1997 (ACT). 2.8 Owners Garage or Car Space Accommodation/Allocation The leasing or renting of an owner’s garage or car space is not permitted. 2.9 Repairs and maintenance – responsibility of unit owners (1) A unit owner is responsible: (a) for the maintenance of appliances and fittings within the unit that are not part of the common property, including, but not limited to, dishwashers, stoves, hot plates, hot water services, exhaust fans, air conditioning units, carpets, baths, taps, flyscreens and doors; and (b) for the cost of the rectification of any damage caused to another unit, to property of another unit, and/or to the common property, by the malfunction or the installation of any such appliance or fitting. (2) An owner of a Class A or Class B u[U]nit who installs an item (including but not limited to an air conditioner, or television antenna), or a panel of photovoltaic cells) on a roof of a Class A or Class B u[U]nit, will be required to comply with the guidelines that have been established for mounting equipment on the roof, to maintain the integrity of the roof. (3) An owner of a Class A or a Class B unit [or] who undertakes an alteration of the unit (including but not limited to the installation of a skylight, a light, a heater and/or a fan) that involves the removal of at least part of the roof of a Class A or Class B u[U]nit, and/or the insulation under the roof of a Class A or a Class B unit, is liable for the cost of the repair or rectification of any damage caused by such an installation or alteration. 2.10 Use of Common Property (1) An owner, occupier or user of a unit must not wilfully damage any part of the common property. (2) No person is to leave objects in the common area that would obstruct the free passage by others. No b[B]icycles, tricycles, perambulators, scooters, umbrellas, personal effects or other items are to be left under the stairs or in the stairwells of the Class A building. (3) The above ground car parking is for short stay visitor parking only. It is not to be used by residents/owners as storage for vehicles. Any vehicle left for longer than two months [weeks] may [will] be treated as abandoned and the executive committee or the Strata Manager may arrange for its removal. (4) Visitors directly attending a unit are the only persons permitted to use the car parking on common property. Residents may not give permission for anyone to park in common property car parks and then leave the grounds for any reason. (5) Parking of motor vehicles (including motorcycles) is restricted to allocated garage car spaces only. All requirements indicated on parking signs are to be adhered to. Parking of vehicles on the common property lawns and nature strips is prohibited. (6) Vehicles are not to be driven at speeds in excess of 5 kph within the complex. (7) The electrical power outlets in the garage must not be used to charge, or recharge, or top up the charge in, a battery of an electrically powered vehicle (including, but not limited to, an EV, a Hybrid EV, a PHEV, an electrically powered scooter, and an electrically powered bicycle). (8) Electrical cables are not permitted to be extended from a window of any unit for the purpose of charging, recharging, or topping up the charge in a battery of an electrically powered vehicle as defined in Rule 2.10(7). (9) [(7)] Smoking is not permitted in any part of the common property inside the Class A building or in the underground car park. (10) [(8)] An owner, occupier or user of a unit must not throw cigarette butts over a balcony or discard them in any part of the common property. (11) [(9)] Children under the age of 16 years must be accompanied by an adult when in the common property. (12) [(10)] No items, including builders waste, furniture, tyres, and electrical appliances, are to be dumped or stored in or around the rubbish skip room, or elsewhere on the common property. (13) [(11)] Only recyclable material, i.e., all paper and cardboard, tins, recyclable glass and hard plastics, is to be placed in the designated recycling bins. Food scraps, soft plastic bags, electronic equipment, wooden articles and scrap metal are not to be placed in the designated recycling bins. (14) [(12)] Advertising signs are not to be erected on the common property. 2.11. Security of common property (1) A unit owner must not compromise, or permit any compromise of, the security of the common property. (2) A unit owner must ensure that any remote controller of the doors of the underground garage in the possession of the owner, or in the possession of any other person to whom the unit owner has given such a remote controller, is held securely. A loss of a garage door remote controller will require the remote garage door controllers of all unit owners to be re-programmed. The cost of re-programming will be borne by the unit owner whose remote garage door controller has been lost [responsible for the loss]. (3) An owner, occupier or user of a Class A unit must not impede closure of a door to a C[c]lass A unit stairwell. Where a stairwell door is propped open temporarily, such as for movement of furniture or other heavy items, that unit owner, occupier or user is responsible for the secure closure of the stairwell door immediately upon completion of the activity. (4) A Class A unit owner must ensure that all Bilock keys to the door of the stairwell of that unit that are in that owner’s possession, or in the possession of any other person to whom one of those keys has been given, are held securely. A loss of a stairwell door key, which must be reported to the Strata Manager or the executive committee, will require the Bilock cylinder of the lock of that stairwell door to be replaced and replacement Bilock keys to be issued to the owners of units in that stairwell whose keys do not then operate the replaced Bilock cylinder of the lock of that stairwell [all issued keys to the lock of that stairwell door to be replaced]. The cost of the Bilock cylinder and key replacements will be borne by the unit owner whose Bilock key has been lost. [responsible for the loss.] 2.12 Use of a unit – Nuisance or annoyance (1) Noise between the hours of 10.00 pm and 7.00 am (8.00 am on Sundays) is not to exceed the level of the background noise. (2) Storage rooms and car parks must be kept in a clean and tidy condition. (3) Clotheslines are not to be installed on balconies and washing and other articles are not to be hung over balcony railings. Clothes horses/airers are not permitted unless below the level of the balcony railing. (4) No wood or charcoal burning barbecue is to be used on balconies. (5) Advertising signs must not be displayed on the balconies.

15. Motion 22 was voted on, with 15 votes in favour and 14 against, with one abstention. A special resolution can only pass where the total of the opposing votes is less than a quarter of the votes that could have been cast on the 20 motion. Not meeting that standard, the motion failed to pass. As motion 22 had been unsuccessful, motion 23 was not put to the AGM.

The arguments of the parties

16. Mr Duncan presents his motion as a disinterested effort aimed at improving the rules, making them correct in language, clarifying their intent where there is ambiguity, improving their consistency with the UTM Act and other legislative instruments, and generally tidying their expression and presentation. He asserts that he was not seeking to make any substantive change, introducing new elements only where previous AGM resolutions supported such changes. He characterised opposition to his motion as arising from a lack of proper understanding of what he had proposed, or otherwise from the opposed parties being misguided.

20 UTM Act, Schedule 3, cl 3.16

17. The opposition to the motion, as set out in the joint and Belkin submissions, is entirely focused on the proposed amendment to Rule 2.5, and derives from the different entitlements of Class A and Class B units (use of the sinking fund for maintenance work on Class B units must be authorised by special resolution, whereas maintenance of Class A units is required of the owners corporation by section 24 of the UTM Act). Some Class B unit owners express a concern that their present entitlement to such maintenance work might be reduced or threatened by the proposed amendment. They do not see any need for amendment to the current rule. The Belkin submission suggests that Mr Duncan is making a bad faith attempt to change the rules to the detriment of Class B unit owners.

Consideration

18. Section 129(1)(g) of the UTM Act reads as follows: (1) The ACAT may make the following orders: … (g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;

19. The provision calls for the Tribunal to undertake what is potentially a four-step process: first of all a “merits review” of the unsuccessful motion; second a determination whether, in light of that merits review, the opposition to the motion was “unreasonable”; third, if the Tribunal has found that the opposition to the motion was unreasonable, a decision whether to give effect to the motion; and if the Tribunal does so decide, whether to give effect to the decision as originally put or to amend it. This process can be substantially abbreviated in certain circumstances: for example, if the opposition to the motion was reasonable, the other questions immediately fall away.

20. A series of decisions by this Tribunal has established some of the principles governing decision-making under section 129(1)(g) of the UTM Act; the Tribunal has also called on a High Court case, Ainsworth v Albrecht 21 (Ainsworth), dealing with Queensland legislation with many similarities to that in the ACT.

21. The term “merits review” is not defined in the UTM Act, but the concept is familiar in administrative law, especially in the context of tribunal review of government decisions, and it is that concept that has been applied in this 22 Tribunal. The critical distinction is between judicial review, which is focused on whether the reviewed decision was lawful, and merits review, which seeks to 23 find the “correct or preferable” decision — that is, it explores the merits, and not purely the legality, of the decision. The Tribunal, in reviewing the decision, 24 “stands in the shoes” of the original decision-maker, and makes a fresh de novo decision, based on all the evidence.

22. This provision of the UTM Act calls for a decision whether the opposition to the unsuccessful motion “was unreasonable”, in the past tense. Opposition to the motion could only have been unreasonable if it was unreasonable in the light of the evidence available at the time the motion was put. For that reason it is accepted that the evidence to be taken into account in the merits review of the 25 defeated motion is that available at the time the decision was made (it is recognised in the case law on merits review that in some statutory contexts the usual approach of taking into account all the evidence up to the time of the 26 hearing should not be followed).

23. It is also accepted that “unreasonable”, not being defined in the UTM Act, should have its usual meaning. A definition that has been widely followed is from the Macquarie Dictionary: “not reasonable, not endowed with reason, not guided by reason or good sense, not based on or in accordance with reason or

21 [2016] HCA 40 22 See for example Meaney v The Owners – Units Plan 40 [2013] ACAT 72, at [31]-[42]; The Owners – Units Plan 768 v Lokusooriya [2013] ACAT 80, at [26]-[28]; Floro v The Owners – Units Plan 630 [2017] ACAT 4, at [15]-[18]; Bonansea v The Owners – Units Plan 421 [2019] ACAT 10, at [15]- [22] 23 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 24 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934, 943 25 Bonansea v The Owners – Units Plan 421 [2019] ACAT 10, at [20]-[21], [34] 26 Shi v Migration Agents Registration Authority [2008] HCA 31, at [44]-[46] (Kirby J), [142]-[145] (Kiefel J) 27 sound judgement”. Whether or not the opposition to the unsuccessful motion 28 was unreasonable is then to be decided on an objective basis.

28. The merits to be assessed in the merits review are from the OC’s perspective; not whether the motion was best formulated and drafted to do what applicant was aiming to do (whether actually or purportedly). The reasonableness question then looks at the motion from the point of view of each of the opposing OC members — whether the motion would have an adverse impact on their interests as members, that is, on their own units or on the common property. In 29 Ainsworth the High Court commented that: opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent's property rights may be seen to be unreasonable. Opposition prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in the circumstances of a particular case.

29. In some circumstances a merits review of the defeated motion may not be necessary — for example, if it was reasonable of the opponents of the relevant motion to have opposed it, the application to the Tribunal cannot succeed. In those circumstances, it would be an inefficient use of time to complete a merits review beforehand. For reasons that will become clear, in this instance I have completed a merits review of the motion.

Merits review of the unsuccessful motion

30. The proposed changes to the first set of rules (Rules 1.1 to 1.12), including the changes to the headings and introductory text, are all aimed, it appears to me, at clarifying and elaborating on the existing intent of the rules. The only changes of any real extent are to Rule 1.4 (where examples have been added, deleted and amended) and Rule 1.12 (where editorial amendments have created a much neater presentation of the rule, with no change in the sense). Elsewhere, the format changes in the introductory text are sensible and explain the origin of the rules more satisfactorily; and other editorial changes, such as universally 27 The Owners – Units Plan 396 v Uren [2017] ACAT 100, at [65], [67]; Clews v the Owners – Units Plan 3069 [2019] ACAT 63, at [65]-[66] 28 Uren v the Owners – Units Plan 396 [2017] ACAT 51, at [17]; Bonansea v The Owners – Units Plan 421 [2019] ACAT 10, at [33]-[34]; Clews v the Owners – Units Plan 3069 [2019] ACAT 63, at [67]; Bisa v the Owners - Units Plan 1547 [2023] ACAT 46, at [67] 29 Ainsworth at [63] referring to the “owners corporation” with no apostrophe, align the text with the UTM Act.

31. The proposed changes to the second set of rules (Rules 2.1 to 2.12) are more extensive. The format changes at the start of this second part replace references to “alternative rules” with a heading that identifies the set as “additional rules agreed by the Owners Corporation”. Section 108 of the UTM Act allows the owners corporation to make alternatives modifying the default rules by special resolution; a non-exhaustive list of examples of matters that might be covered by alternative rules is given in section 108(2), and section 108(3) prohibits certain changes or kinds of changes. Since some of the possible changes identified in section 108(2) are not included in the default rules, it is clear that alternative rules may be made either to change the default rules, or to create additional rules. The Rules of Macquarie Court include both rules that are modified default rules (among Rules 1.1 to 1.12) and additional rules (Rules 2.1 to 2.12). The proposed heading changes to the two sets of rules capture this distinction, and although both are referred to in the UTM Act as “alternatives”, the changes proposed by Mr Duncan are sensible and more readily comprehensible.

32. The proposed changes to Rule 2.2 are the most substantial of all. In sub-rule 2.2(1) drafting changes clarify the operation of the rule and seem to me to be entirely helpful. But sub-rule 2.2(2) is new and significant: it provides that a unit owner who owes money to the owners corporation may not cast a vote at a general meeting of the OC or stand for or be elected to the Executive Committee while the amounts remain unpaid. Mr Duncan’s explanatory note points out that the first part of the proposed sub-clause aligns the Macquarie Court Rules with the UTM Act (clause 3.20(3) of Schedule 3); and that the second half reflects a 2022 decision by the Executive Committee. This new sub-rule occasioned no objection at the AGM at which Mr Duncan’s proposed changes were considered, and the concept that unpaid debts to the OC should attract this kind of consequence seems sensible.

33. One element may need clarification, however. The sub-rule provides that the consequences of owing a debt to the OC have the prescribed effect when the amount owed becomes “payable”. Sub-rule 2.2(1) allows a grace period of 45 days for payment of a levy after the due date, or for payment of any other amount to the OC after notification. In the proposed sub-rule 2.2(2), is the amount “payable” at the end of the 45-day grace period, or from the due date or the date of notification? A normal understanding of payability would suggest the latter rather than the former, but if a grace period is allowed for payment, it would usually follow that no adverse consequences should be attracted until the grace period has ended. Sections 80 and 91 of the UTM Act provide that contributions to the general and sinking funds, respectively, are “payable” on the due date in the notice. A simple drafting change would make it clear that the adverse consequences spelt out in the sub-rule only apply once the grace period is exhausted.

34. The proposed drafting changes to Rules 2.3 and 2.4 are sensible and unexceptionable.

35. It is the proposed changes to Rule 2.5, dealing with the maintenance of Class A and Class B units, that attracted opposition. This was the only rule change that the opposed members of the owners corporation appear to have been concerned about. Their concern was that the access of Class B unit owners to the sinking fund for maintenance of their units could be reduced or compromised. The definition of Class A and B units, quoted above, is somewhat opaque, but the effect is that the paradigmatic Class A complex is a block of flats; the Class B equivalent is a group of houses or townhouses on a single parcel of land. The distinction is important because the UTM Act requires the owners corporation, rather than unit owners individually, to maintain the common property of the units plan, and also the “defined parts” of any building containing Class A units (the defined parts are load bearing walls, columns, footings, slabs, and beams, 30 and any part of a balcony). The owners corporation undertakes maintenance of 31 Class B units only where authorised by a special resolution. The cost of maintenance by the owners corporation is borne by the sinking fund for the

30 UTM Act, s 24(4) 31 UTM Act, s 24(1) 32 units plan. Each owner must contribute to the sinking fund, and the 33 contributions each owner must make can be set by special resolution.

36. It is perhaps unsurprising that, where a single units plan includes both Class A and B units, tensions can arise among owners over maintenance or the use of or contributions to the sinking fund. The UTA requires that there be Class A or Class B units in a single units plan, but not both; that provision was introduced when the present UTM Act entered into effect in 2001. Prior to 2001 it was possible for single complex to include both Class A and Class B units, and Macquarie Court, it appears, is an example of just such a complex.

37. The unamended Rule 2.5 was created by a special resolution passed at the 2020 AGM. It reads as follows: 2.5 Class B Units - Maintenance The maintenance of external parts of the Class B Unit building. including the roof, guttering, fascia boards, downpipes, courtyard walls, and balconies be included in the maintenance covered by the Sinking Fund of Units Plan No. 355, in addition to: (a) the painting of the external walls of the Class B Units when the painting of the external walls of the Class A Units is carried out; (b) the clearing of the roof gutters on the Class B Units when the clearing of the roof gutters on the Class A Units is carried out; (c) the cleaning of the difficult to reach windows on the Class B Units when the cleaning of the difficult to reach windows on the Class A Units is carried out; and (d) the trimming, in consultation with the gardener for Units Plan No. 355, of the hedges in the courtyards of the Class B Units. Note: By special resolution (Motion 5) of the Annual General Meeting of the Owners’ Corporation 31 May 2011, the owners corporation covers the cost of the painting of the exterior of the building containing the Class B units, and the cleaning of the difficult to reach windows and the gutters of the Class B units, but not any other painting or maintenance of that building.

32 UTM Act, ss 81, 82, 83, 88 33 UTM Act, s 89

38. The same Rule, amended in line with Mr Duncan’s defeated motion to the 2025 AGM, reads as follows:

2.5 Maintenance of Class B Units Each owner of a Class B unit is responsible for the maintenance of external parts of the Class B Unit building. However, the Owners Corporation will pay for: (a) the painting of the external walls of the Class B units when the painting of the external walls of the Class A units is carried out; and (b) the clearing of the roof gutters on the Class B units when the clearing of the roof gutters on the Class A units is carried out; and (c) the cleaning of the outside surfaces of the difficult to reach windows on the Class B units when the cleaning of the outside surfaces of the difficult to reach windows on the Class A units is carried out; and (d) the trimming, in consultation with the gardener for Units Plan No. 355, of the hedges outside the courtyards of the Class B units; and (e) the maintenance of the roof, guttering, fascia boards, downpipes, courtyard walls, and balconies of the Class B units; but no other painting or maintenance of the external parts of the Class B units. Notes: (1) By special resolution (Motion 5) of the Annual General Meeting of the Owners Corporation held on 31 May 2011, the owners corporation will cover the cost of the painting of the exterior of the building containing the Class B units, and the cleaning of the outside surfaces of the difficult to reach windows and the clearing of the gutters of the Class B units, as detailed in sub-rules (a), (b) and (c) of Rule 2.5; but not any other painting or maintenance of that building. (2) By special resolution (Motion 8.b) of the Annual General th Meeting of the Owners Corporation held on 18 February 2020, the Owners Corporation agreed to cover the cost of the additional maintenance of the Class B units detailed in sub-rules (d) and (e) of Rule 2.5.

39. The sentence at the beginning of the proposed amended rule is simply a statement of the effect of section 24(1)(g) of the UTM Act — maintenance of Class B units is only the responsibility of the owners corporation when it is authorised by special resolution. In the unamended rule the maintenance of Class B units, to the extent specified, is paid for out of the sinking fund; under the amended rule it is paid for by the owners corporation. The effect of the two drafting choices is the same, but in my view the latter is preferable, as it reflects the UTM Act more precisely (section 24 makes the owners corporation responsible for maintenance). It may be that owners of Class B units at Macquarie Court would feel more secure if the responsibility for maintenance of the agreed aspect of their units is clearly allocated to the sinking fund; but the owners corporation has nowhere else to turn, and a responsibility under the Rule to do the necessary maintenance. I cannot see that the different allocation of responsibility has any practical effect.

40. Special resolutions have been passed authorising the maintenance listed in paragraphs (a) to (e) of the proposed amended rule; anything apart from that must be borne by the individual owners. To the extent that any unfairness results from that, it is the outcome of the UTM Act itself and the special resolutions passed over the years by successive AGMs. The last sentence of paragraph (e) is of general rather than specific application and could be formatted separately from the paragraph. The two footnotes provide a history of how and when the special resolutions authorising the maintenance were passed. The drafting (of rule and notes) improves the consistency with which the exceptions to the rule are set out, and the explanation of how they came about.

41. So far as I can see, the effect of the unamended and amended rules on the availability of corporate funds for maintenance of Class B units is the same.

42. Rules 2.6, 2.7 and 2.8 are unamended, apart from an editorial change of no significance in Rule 2.7. In Rule 2.9 several changes are proposed: first, more examples are included in the non-exhaustive list in 2.9(1)(a) of appliances for which each unit owner must take responsibility for repair and maintenance; second, changes to 2.9(2) include photovoltaic panels as an example of a rooftop installation, and reference is made to existing guidelines for the mounting of equipment on the roof; finally, the second half of what was formerly part of 2.9(2) becomes a separate paragraph 2.9(3), adding the example of an alteration of a unit’s roof (a skylight), and also adding as an example of interference with a roof the removal of insulation under the roof. Mr Duncan explained that some of these changes were agreed at an earlier AGM but for some reason were omitted at an updating of the Rules. I do not see any of these changes, none of which were voted against or have occasioned comment, as problematic, and, once again, in my opinion, they clarify and improve the utility of the draft.

43. Rule 2.10 deals with the use of common property. The major proposed change is the addition of 2.10(7) prohibiting the charging of electric vehicles (of any description) in the garage; and 2.10(8) prohibiting the charging of a vehicle by a cable through a window. At first glance these changes seem draconian, but Mr Duncan’s explanatory note states that charging facilities for Class B unit owners who own electric vehicles are available in their separate garages, and it would not be equitable for unit owners in general to bear the cost of charging an electric vehicle from a common property power point.

44. Rule 2.11, relating to the security of common property, has been edited to make the meaning of the rule clearer and its presentation neater. In my view it is an improvement on the current text. Rule 2.12 is unchanged.

45. It is my conclusion that the Rules, as proposed to be amended by Mr Duncan, are an improvement in drafting, presentation and comprehensibility. The substantial changes made in rules 2.2 and 2.10 appear to have been unopposed and are reasonable in the circumstances. Taking the rules as a whole, I cannot see that the interests of any unit owner are adversely affected, and that applies in particular to the changes to Rule 2.5, where the changes have no effect on the entitlements of any unit owner. From a merits point of view, the correct or preferable decision is that the changes should be accepted.

Was the opposition to the unsuccessful motion unreasonable?

46. The opposition to Mr Duncan’s motion is focused on Rule 2.5 and is entirely from owners of Class B units in Macquarie Court. The opposition appears to be driven by the perception that Class B owners are discriminated against in respect of the allocation of sinking fund resources to their units.

47. The more trenchant statement of opposition to the proposed amendment to Rule 2.5 comes from the Belkin submission. Ms Belkin asserts that the amended rule “would have the effect of reducing the amount of levies which could be 34 spent on B Class units”. My analysis, set out above, is that the amended rule is no different in effect from the unamended rule, and Ms Belkin offers no explanation of how the changes might in practice affect the allocation of levies to Class B units. Ms Belkin goes on to assert that the meaning of “unreasonable” in section 129(1)(g) is the “administrative law sense”, drawing on the case law from judicial review of administrative decisions, and especially 35 on Associated Provincial Picture Houses Ltd v Wednesbury Corp (Wednesbury). This standard of unreasonableness would require that the opposition was “manifestly arbitrary, vague or irrational, so unreasonable that 36 no reasonable person could have opposed it”; that contention is supported by Australian case law, where this standard of unreasonableness is described as 37 lacking “an evident and intelligible justification”.

48. This strong form of unreasonableness derives from administrative law, as Ms Belkin correctly states. It is strong because of the determination of the judiciary, in the referenced cases, not to intervene inappropriately in the workings of the executive arm of government; it is driven by a regard for the separation of powers. So much is clear from a reading of the Wednesbury judgment. That doctrine has no place in the workings of this Tribunal — itself part of executive government — in undertaking a statutory review of a decision of an owners corporation, where separation of powers considerations have no relevance. Nor is there anything in the statute that would call up the strong version of unreasonableness. In the context of this provision in the UTM Act, the ordinary meaning of “unreasonable” has been endorsed on many 38 occasions; the High Court adopted the same view in Ainsworth; and that is the meaning that I am applying in this decision.

49. Ms Belkin also contends that it is not possible to conduct a merits review of the motion because, in her words, “there are two diametrically opposed classes of

34 Belkin submission, at [7] 35 [1948] 1 KB 223 36 Belkin submission, at [10] 37 Minister for Immigration and Citizenship v Li [2013] HCA 18 38 See for example The Owners – Units Plan 396 v Uren [2017] ACAT 100, at [65]-[67] interests in the Owners’ Corporation: those of Class A owners and Class B 39 owners”. Ms Belkin suggests that it is difficult for the Tribunal to arrive at the correct or preferable decision without detriment to one or other class. This is a misrepresentation of merits review. It is entirely normal for the interests of the parties in merits review to be in opposition to one another; as an example, in the review of a taxpayer’s objection to a taxation assessment, the interests of the revenue and of the taxpayer are in opposition, but that does not prevent a tribunal from determining where the merits of the matter lie, and it may be that in the event one or other of the parties will suffer some detriment. That will still be the correct or preferable decision if it reflects the law and the best application of the available discretion, in all the circumstances. In the present instance, in the first place the statement that the interests of Class A and Class B owners are “diametrically opposed” is, I think, a gross exaggeration, although it is plain that the interests of the two classes are distinguished in the statute. Further, my analysis of the drafting of Rule 2.5 suggests that neither Class A nor Class B owners are detrimentally affected by the proposed change. Differences between Class A and B owners is no obstacle then to arriving at an outcome in the merits review of the rule.

50. Ms Belkin also suggests that the voting result from the AGM should not be interfered with; that the voting result, arrived at in conformance with the UTM 40 Act, reflects the preferences of the members, and should be allowed to stand. It is indeed the case that the vote was taken in accordance with the UTM Act; but the UTM Act also provides for the Tribunal to intervene, on application. This step is equally part of the decision-making process under the UTM Act, where a member of the owners corporation takes up the option of applying.

51. Finally, Ms Belkin suggests that Mr Duncan’s application is “a mala fides 41 attempt to circumvent the perfectly legal process” for voting at the AGM. As pointed out in the previous paragraph, the UTM Act specifically provides for applications of the kind made by Mr Duncan. That application having been made, the process set out in section 129(1)(g) of the UTM Act must now be 39 Belkin submission, at [14] 40 Belkin submission, at [15] 41 Belkin submission, at [16] followed. And I can see no evidence of mala fides in the path followed by Mr Duncan.

52. The joint submission is more moderate in tone. There is a good deal of history in the submission, hinting, it appears, at lingering suspicion and possibly resentment against Mr Duncan in particular and Class A unit owners in general. 42 The submission states that: The voting requirements in the Unit Titles (Management) Act are there to balance competing views amongst members of the owners’ corporation in the fairest way possible. The unit holders who have voted down Mr Duncan’s motions have been concerned with unanticipated consequences and his actions.

53. The authors go on to say that “Mr Duncan was made aware in the 2023 [sic] by a number of Class B owners that a motion to amend now Clause 2.5 would be interpreted as potentially reducing access to the Sinking fund for Class B 43 owners and would be voted down.” The submission arrives at the following 44 conclusion: Given that there is nothing fundamentally wrong with the existing wording in rule 2.5 of the rules, i.e. it is not unlawful, and that the rules were validly made, this submission argues the that rule 2.5 should remain as per the outcome of the 2025 General Meeting

54. It seems clear that the objections of those opposed to the motion are based on the history of the debates in the owners corporation, and on perceptions of Mr Duncan’s motivation and past behaviour. I can find no arguments that point to any objective detriment to any Class B unit owners (or indeed to any unit owners); nor did I find, on the merits review, any detriment to the owners in the proposed amendments. The statement that Mr Duncan had been told that any amendment would be “interpreted” as reducing the entitlements of Class B owners appears to imply that it would have been so interpreted regardless of its actual wording. These are all subjective reasons for opposing the motion; I can find no objective detriment to any unit owner. The lingering mistrust, suspicion and resentment that some unit owners appear to hold towards Mr Duncan — whether deserved or not — fall well short of the “spite or ill-will” referred to by 42 Joint submission, p 3 43 Joint submission, pp 3-4 44 Joint submission, p 4 the High Court in Ainsworth, but the same reasoning applies. The opposition to the motion put at the 2025 AGM by Mr Duncan was unreasonable.

Should the unsuccessful motion be given effect?

55. Section 129 lists the kinds of actions that the Tribunal may take in disputes under the UTM Act. The use of “may” at the beginning of the section, before the list of possible actions, signals that the power is discretionary; the positive outcome to the merits review, and the conclusion that opposition to the motion was unreasonable, enliven the discretion. A separate decision is then required to give effect to the defeated motion. In most circumstances where there is a positive merits review outcome, and the opposition has been found to be unreasonable, it would seem odd not to exercise the discretion. But section 146(1) of the Legislation Act 2001 provides that where the word “may” is used with respect to a function, the function may or may not be exercised, at discretion. It follows that a separate decision whether or not to give effect to the defeated motion is required. It is clear that Mr Duncan is unlikely to find himself popular among some of his fellow unit owners if the motion is passed; but he was surely aware of this potential consequence when he made his application to the Tribunal. I can see no reason why the motion should not be given effect; I will give effect to the motion.

Should the motion be given effect as put or should it be amended?

56. I have already signalled, in the merits review, two places where I think there would be advantage in making minor changes to the rules as amended by Mr Duncan’s motion (in Rules 2.2(2) and 2.5). There are a few other places where the drafting could be usefully simplified or harmless corrections made. But in general it seems to me that any amendment of a motion, or perhaps a motion of this kind, at any rate, should be limited to changes that are consistent with the motion that was defeated at the AGM and has been assessed in the merits review. Mr Duncan, in his application, encourages the Tribunal to recast the motion, if successful, as the ten motions he originally put forward to the Executive Committee (these were presented to the meeting as a single motion so 45 as to avoid the need for a special general meeting). He also asked for his

45 Chair/Executive Committee Annual Report to March 2025 AGM, page 6 explanatory notes to be included as part of the motion given effect. But changes of that kind seem to me an unnecessary interference with and addition to the motion that was defeated. In the merits review of the defeated motion there are references to material put forward in the notes; but the notes themselves have not been subject to merits review.

57. Mr Duncan has also pressed for an additional order, namely a version of item 23 on the AGM agenda, pointing to section 129(2) of the UTM Act as authority for me to do so. That subsection allows the Tribunal to “make any other order it considers reasonably necessary or convenient to resolve a dispute under this part”. But so far as I can see, the matters covered by the agenda item — such as registering the amended Rules and complying with them in the future — are not part of this dispute: the motion under item 23 was never put and nothing is known about whether it would have attracted any opposition, let alone the reasonableness of the positions that might have been taken. I cannot see that any dispute exists that might allow me to exercise the power conferred by section 129(2) along the lines suggested by Mr Duncan. I would expect, however, that the Rules, as now amended, will be registered as required by section 27A of the Land Titles (Unit Titles) Act 1970.

58. I have made the following amendments to the Rules as proposed by Mr Duncan: (a) Rule 1.4 has been edited to improve the drafting and to present the examples in a consistent format. (b) Rule 2(2) has been amended to clarify that the constraints on participation in AGMs and the Executive Committee apply only if money is still owed at the end of the grace period. (c) In Rule 2.3(1), the text has been amended to reference the ACAT in a less clumsy way. (d) The sentence at the end of Rule 2.5 has been separately formatted. Order The Tribunal orders that: 1. The motion put forward under Item no. 22 at the Units Plan 355 Annual General Meeting on 12 March 2025 is given effect, as amended by this decision.

59. From the date of this decision, the Rules of the Units Plan are those set out in the attachment to this decision.

……………………………….. Senior Member M Hyman

Date of hearing: 3 December 2025 Applicant: In person Respondent: Will Brehm Jim Nockels Eric Dallas Daniel Leskovec ATTACHMENT

RULES OF MACQUARIE COURT 26 Macquarie Street, Barton ACT Units Plan No.355 Part 1. Rules aligned with or derived from the default rules of Schedule 1 of the Unit Titles (Management) Regulation 2011. 1.1 Definitions. (1) In these rules: Owner, occupier or user, of a unit, includes an invitee or licensee of an owner, occupier or user of a unit. (2) A word or expression in these rules has the same meaning as in the Unit Titles (Management) Act 2011. 1.2 Payment of rates and taxes by unit owners A unit owner must pay all rates, taxes, and any other amount payable for the unit. 1.3 Repairs and maintenance (1) A unit owner must ensure that the unit is in a state of good repair. (2) A unit owner must carry out any work in relation to the unit, and do anything else in relation to the unit, that is required by a territory law. 1.4 Erections and alterations (1) A unit owner may erect or alter any structure in or on the unit but only— (a) in accordance with the express permission obtained in an unopposed resolution of the executive committee or, if the executive committee is unable to come to a resolution, a special resolution of the owner’s corporation; and (b) in accordance with the requirements of any applicable territory law (for example, a law requiring development approval to be obtained for the erection or alteration). (2) Permission obtained in accordance with Rule 1.4(1)(a) may be given subject to conditions stated in the resolution. (3) However, if the structure is sustainability infrastructure, the owner’s corporation’s permission must not be unreasonably withheld. Examples—permission not unreasonably withheld • safety considerations • structural considerations • financial consideration • equity of access to common property, easements, facilities or utility services Examples—permission unreasonably withheld • An installation of a hard floor in a Class B unit. • An installation of an air conditioner or an antenna where the installation meets the guidelines for such an installation. (4) A unit owner must notify the Strata Manager or the executive committee if any material containing asbestos is discovered in the course of the erection or alteration of any structure in or on the unit, or in or on the common property. 1.5 Pets in units (1) A unit owner must not keep, or permit to be kept, any animal within the unit, without approval by a resolution of the executive committee. (2) The executive committee must not withhold approval under Rule 1.5(1) unreasonably. (3) Approval given under Rule 1.5(1) may be given subject to stated conditions. (4) (4) Approval given under Rule 1.5(1) may be withdrawn by a resolution of the executive committee or by a special resolution of the owners corporation. 1.6 Assistance animals An occupier or user of a unit who keeps an assistance animal must provide the executive committee or the Strata Manager with evidence that the animal is an assistance animal. If the occupier or user of the unit is not the owner of the unit, the occupier or user must also provide the owner of the unit with that evidence. 1.7 Use of common property A unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier, or user of another unit, other than in accordance with a special privilege rule. 1.8 Hazardous use of unit A unit owner must not use the unit, or permit it to be used, to cause a hazard to an owner, occupier, or user of another unit. 1.9 Use of unit—nuisance or annoyance (1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit. (2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use. (3) Permission may be given subject to stated conditions. (4) Permission may be withdrawn by special resolution of the owner[’]s corporation. 1.10 Noise (1) A unit owner must not make, or permit to be made, such a noise within the unit as might (in the circumstances) be reasonably likely to cause substantial annoyance to an owner, occupier, or user of another unit. (2) This rule does not apply to the making of a noise if the executive committee has given the person responsible for making the noise written permission to do so. (3) Permission may be given subject to stated conditions. (4) Permission may be withdrawn by special resolution of the owner[’]s corporation. 1.11 Illegal use of unit A unit owner must not use the unit, or permit it to be used, to contravene a law in force in the ACT. 1.12 What may an executive committee representative do? (1) The executive committee may give a written authority to a person (an executive committee representative, as defined in regulation 1.12(4) of Schedule 1 of the Unit Titles (Management) Regulation 2011) to represent the owners corporation under this Rule. (2) An executive committee representative may do any of the following in relation to a unit at all reasonable times: (a) if the committee has reasonable grounds for suspecting that there is a breach of the Act or these rules in relation to a unit— inspect the unit to investigate the breach; (b) carry out any maintenance required under the Act or these rules; (c) do anything else the owners corporation is required to do under the Act or these rules. (d) the executive committee or the representative has given the owner, occupier or user of the unit reasonable notice of his or her intention to do the thing; or (b) in an emergency, it is essential that it be done without notice. (3) An executive committee representative may enter a unit and remain in the unit for as long as is necessary to do something mentioned in sub-rule (2). (4) An executive committee representative is not authorised to do anything in relation to a unit mentioned in sub-rule (2) unless— (a) the executive committee or the representative has given the owner, occupier or user of the unit reasonable notice of his or her intention to do the thing; or (b) in an emergency, it is essential that it be done without notice. Part 2. Additional Rules agreed by the Owners Corporation. 2.1 Execution of Documents. (1) The Strata Manager is allowed to sign all statutory documents required under the Act, including Section 119 certificates and notices of reduced quorums. (2) The Executive Committee must approve the signing of all other documents, such as contracts and service agreements. 2.2 Contributions (levies) and other monies owing (1) If any contribution (levy) determined by the owners corporation or any other money owing to the corporation is not paid within a grace period of forty-five (45) days from the due date for payment of a contribution, or from the date of a notification to the owner that such other money is owing, then the amount due will attract interest at a rate of 15% per annum from the last day of the grace period until such time as the contribution or other money and the interest accrued since the end of the grace period have been paid. (2) The owner of a unit in respect of which all amounts payable to the Owners Corporation have not been paid, taking into account the grace period established by Rule 2.2(1), before the start of a General Meeting of the Corporation (a) is not entitled to vote on a motion at a General Meeting of the Owners Corporation (including the Annual General Meeting of the Owners Corporation), and (b) is not entitled to be elected, or to be proposed or nominated for election to the Executive Committee, or to be co-opted to serve as a member of the Executive Committee or any other committee or subcommittee of the Owners Corporation, until the owner has paid all amounts owing to the Owners Corporation. 2.3 Recoupment of Costs of Debt Collection. (1) If the owners corporation incurs legal or other costs in any legal action (including an action before the ACT Civil and Administrative Tribunal), against a unit owner, including action to recover amounts owing pursuant to section 95 of the Unit Titles (Management) Act 2011, then, provided the action was commenced by the owners corporation in good faith, the unit owner shall be liable to pay the owners corporation the full amount of any legal fees or other costs incurred in that action. (2) The unit owner agrees that any monies which are payable pursuant to Rule 2.3(1) shall be a debt enforceable by the owners corporation against the unit owner. (3) Notwithstanding Rules 2.3(1) and 2.3(2), the owners corporation shall not be entitled to recover any legal fees or other costs from the unit owner unless the owners corporation first provides to the unit owner a copy of invoices or, where the amount has already been paid by the owners corporation, receipts to evidence the amount due or paid by the owners corporation. If the unit owner fails to pay the legal fees or other costs in accordance with Rule 2.3(1), the owners corporation may declare that a charge is to be imposed over the lease of the unit to secure payment of those costs and the unit owner shall not be entitled to object or seek to remove the registration of that charge over the lease of the unit. 2.4 Correspondence All correspondence and notices, including correspondence for the purpose of giving notice of a general meeting under the provisions of Schedule 3, Section 3.6 of the Unit Titles (Management) Act 2011, and all other general correspondence will be sent to unit owners by email to an email address notified to the Strata Manager for this purpose by the owner. If no email address is notified to the Strata Manager, such correspondence and notices will be sent by post. 2.5 Maintenance of Class B Units Each owner of a Class B unit is responsible for the maintenance of external parts of the Class B Unit building. However, the Owners Corporation will pay for: (a) the painting of the external walls of the Class B units when the painting of the external walls of the Class A units is carried out; and (b) the clearing of the roof gutters on the Class B units when the clearing of the roof gutters on the Class A units is carried out; and (c) the cleaning of the outside surfaces of the difficult to reach windows on the Class B units when the cleaning of the outside surfaces of the difficult to reach windows on the Class A units is carried out; and (d) the trimming, in consultation with the gardener for Units Plan No. 355, of the hedges outside the courtyards of the Class B units; and (e) the maintenance of the roof, guttering, fascia boards, downpipes, courtyard walls, and balconies of the Class B units; (f) but no other painting or maintenance of the external parts of the Class B units. Notes: (1) By special resolution (Motion 5) of the Annual General Meeting of the Owners Corporation held on 31 May 2011, the owners corporation will cover the cost of the painting of the exterior of the building containing the Class B units, and the cleaning of the outside surfaces of the difficult to reach windows and the clearing of the gutters of the Class B units, as detailed in sub-rules (a), (b) and (c) of Rule 2.5; but not any other painting or maintenance of that building. (2) By special resolution (Motion 8.b) of the Annual General Meeting th of the Owners Corporation held on 18 February 2020, the Owners Corporation agreed to cover the cost of the additional maintenance of the Class B units detailed in sub-rules (d) and (e) of Rule 2.5. 2.6 Residential Purpose All units are to be used for residential purposes only, except as allowed under the ACT legislation. 2.7 Short-Term Rental Accommodation Short-term rental accommodation through rental platforms including (but not limited to) Airbnb, Stayz and VRBO is not permitted. Owners must let their u[U]nits using the residential tenancy agreements including the prescribed terms and conditions under the Residential Tenancy Act 1997 (ACT). 2.8 Owners Garage or Car Space Accommodation/Allocation The leasing or renting of an owner’s garage or car space is not permitted. 2.9 Repairs and maintenance – responsibility of unit owners (1) A unit owner is responsible: (a) for the maintenance of appliances and fittings within the unit that are not part of the common property, including, but not limited to, dishwashers, stoves, hot plates, hot water services, exhaust fans, air conditioning units, carpets, baths, taps, flyscreens and doors; and (b) for the cost of the rectification of any damage caused to another unit, to property of another unit, and/or to the common property, by the malfunction or the installation of any such appliance or fitting. (2) An owner of a Class A or Class B unit who installs an item (including but not limited to an air conditioner, or television antenna), or a panel of photovoltaic cells) on a roof of a Class A or Class B unit, will be required to comply with the guidelines that have been established for mounting equipment on the roof, to maintain the integrity of the roof. (3) An owner of a Class A or a Class B unit who undertakes an alteration of the unit (including but not limited to the installation of a skylight, a light, a heater and/or a fan) that involves the removal of at least part of the roof of a Class A or Class B unit, and/or the insulation under the roof of a Class A or a Class B unit, is liable for the cost of the repair or rectification of any damage caused by such an installation or alteration. 2.10 Use of Common Property (1) An owner, occupier or user of a unit must not wilfully damage any part of the common property. (2) No person is to leave objects in the common area that would obstruct the free passage by others. No bicycles, tricycles, perambulators, scooters, umbrellas, personal effects or other items are to be left under the stairs or in the stairwells of the Class A building. (3) The above ground car parking is for short stay visitor parking only. It is not to be used by residents/owners as storage for vehicles. Any vehicle left for longer than two weeks will be treated as abandoned and the executive committee or the Strata Manager may arrange for its removal. (4) Visitors directly attending a unit are the only persons permitted to use the car parking on common property. Residents may not give permission for anyone to park in common property car parks and then leave the grounds for any reason. (5) Parking of motor vehicles (including motorcycles) is restricted to allocated garage car spaces only. All requirements indicated on parking signs are to be adhered to. Parking of vehicles on the common property lawns and nature strips is prohibited. (6) Vehicles are not to be driven at speeds in excess of 5 kph within the complex. (7) The electrical power outlets in the garage must not be used to charge, or recharge, or top up the charge in, a battery of an electrically powered vehicle (including, but not limited to, an EV, a Hybrid EV, a PHEV, an electrically powered scooter, and an electrically powered bicycle). (8) Electrical cables are not permitted to be extended from a window of any unit for the purpose of charging, recharging, or topping up the charge in a battery of an electrically powered vehicle as defined in Rule 2.10(7). (9) Smoking is not permitted in any part of the common property inside the Class A building or in the underground car park. (10) An owner, occupier or user of a unit must not throw cigarette butts over a balcony or discard them in any part of the common property. (11) Children under the age of 16 years must be accompanied by an adult when in the common property. (12) No items, including builders waste, furniture, tyres, and electrical appliances, are to be dumped or stored in or around the rubbish skip room, or elsewhere on the common property. (13) Only recyclable material, i.e., all paper and cardboard, tins, recyclable glass and hard plastics, is to be placed in the designated recycling bins. Food scraps, soft plastic bags, electronic equipment, wooden articles and scrap metal are not to be placed in the designated recycling bins. (14) Advertising signs are not to be erected on the common property. 2.11. Security of common property (1) A unit owner must not compromise, or permit any compromise of, the security of the common property. (2) A unit owner must ensure that any remote controller of the doors of the underground garage in the possession of the owner, or in the possession of any other person to whom the unit owner has given such a remote controller, is held securely. A loss of a garage door remote controller will require the remote garage door controllers of all unit owners to be re-programmed. The cost of re-programming will be borne by the unit owner whose remote garage door controller has been lost. (3) An owner, occupier or user of a Class A unit must not impede closure of a door to a Class A unit stairwell. Where a stairwell door is propped open temporarily, such as for movement of furniture or other heavy items, that unit owner, occupier or user is responsible for the secure closure of the stairwell door immediately upon completion of the activity. (4) A Class A unit owner must ensure that all Bilock keys to the door of the stairwell of that unit that are in that owner’s possession, or in the possession of any other person to whom one of those keys has been given, are held securely. A loss of a stairwell door key, which must be reported to the Strata Manager or the executive committee, will require the Bilock cylinder of the lock of that stairwell door to be replaced and replacement Bilock keys to be issued to the owners of units in that stairwell whose keys do not then operate the replaced Bilock cylinder of the lock of that stairwell. The cost of the Bilock cylinder and key replacements will be borne by the unit owner whose Bilock key has been lost. 2.12 Use of a unit – Nuisance or annoyance (1) Noise between the hours of 10.00 pm and 7.00 am (8.00 am on Sundays) is not to exceed the level of the background noise. (2) Storage rooms and car parks must be kept in a clean and tidy condition. (3) Clotheslines are not to be installed on balconies and washing and other articles are not to be hung over balcony railings. Clothes horses/airers are not permitted unless below the level of the balcony railing. (4) No wood or charcoal burning barbecue is to be used on balconies. (5) Advertising signs must not be displayed on the balconies.