Fegent v The Owners - Strata Plan No 6544 [2025] NSWCATCD 205;

1. At a directions hearing on 18 June 2025 the respondent gave an undertaking that it would not enter into any contract regarding the windows until the proceedings were finalised.
2. At the final hearing the parties submitted an agreed bundle. It includes affidavits of Mr Fegent, Margaret O'Brien and expert reports by engineer Amir Naderi for the applicant and engineer Nathan Wells for the respondent.
3. At the commencement of the hearing, the applicant provided a written outline of submissions ("AO"), as did the respondent ("RO").
4. Mr Wells was cross examined.
5. Both parties provided closing submissions, and the applicant brief submissions in reply.

1. The following factual background is not in dispute.
2. The strata scheme is a 14-storey apartment building with 36 lots. Most of its windows are sliding windows. They are single glazed. The respondent says the windows have reached the end of their serviceable life and seeks to replace them with awning windows. This is opposed by the applicant. A key dispute among the lot owners is whether the windows should be replaced with awning windows or sliding windows.
3. On 4 April 2024 the respondent passed a resolution at an Extraordinary General Meeting to replace the windows.
4. The applicant commenced related proceedings in the Tribunal seeking to invalidate the resolution. He succeeded because the resolution was not supported by a special majority. In its reasons for the decision the Tribunal noted that a simple majority is sufficient for a sustainability infrastructure special resolution.
5. The respondent then sought the advice of Mr Wells about the sustainability impact of the proposed new windows. Mr Wells provided a Sustainability Infrastructure Assessment which concluded that any of the proposed new window options would reduce energy consumption and greenhouse gas emissions.
6. On 15 October 2024 the respondent held a general meeting. Relevantly, the following resolutions were passed:

(1) A sustainability infrastructure resolution to replace the external windows with awning windows (Motion 7) by simple majority;

(2) A resolution to proceed with the external window option with double-glazing rather than the cheaper single-glazing option (Motion 8).

1. At a general meeting on 11 February 2025 the respondent passed Motion 4 authorising by special resolution an increase in the costs to be incurred to replace the windows, as per Motion 7.
2. On 26 March 2025 the respondent passed resolutions 3 and 4 ("the Ancillary Motions") authorising the strata committee to finalise the contract for the carrying out of the window replacement and authorising the strata manner or the respondent's lawyers, to affix the respondent's seal to such a contract.
3. More than 25% of the value of the votes in relation to all the above motions were against their passing.

1. The parties agree that the following issues are for determination:

(1) Was Motion 7 a "sustainability infrastructure resolution" within the meaning of s 132B(2) of the SSMA?

(2) Was the requirement in s 132B(1)(a) of the SSMA met prior to the passing of Motion 7?

(1) If the answer to both issues 1 and 2 is yes, the application should fail;

(2) If the answer to one or both of issues 1 and 2 is no, the application should succeed, with each of the above resolutions being invalidated.

1. Pursuant to s 108(1) and (2) of the SSMA, a special resolution must be passed before the respondent may change common property for the purpose of its improvement or enhancement.
2. A special resolution is defined in s 5(1)(b)(ii) as, relevantly:

5 Resolutions of owners corporations

(1) In this Act, a resolution of an owners corporation is a special resolution if -

(a) it is passed at a properly convened general meeting, and

(b) of the value of votes cast -

(i) not more than 25% are against the resolution, or

(ii) if the resolution is a sustainability infrastructure resolution - less than 50% are against the resolution ...

1. Section 132B of the SSMA relates to sustainability infrastructure and says, relevantly:

132B Financing and installation of sustainability infrastructure

(1) Before approving a sustainability infrastructure resolution, the owners corporation must consider the following -

(a) the cost of the sustainability infrastructure and works including any expected running and maintenance costs ...

(2) In this Act -

sustainability infrastructure means changes to part of the common property (which includes the installation, removal, modification or replacement of anything on or forming part of that property) for any one or more of the following purposes -

(a) to reduce the consumption of energy or water or to increase the efficiency of its consumption,

...

(e) to reduce greenhouse gas emissions ...

sustainability infrastructure resolution means a resolution to do any one or more of the following that is specified to be a sustainability infrastructure resolution -

(a) to finance sustainability infrastructure,

(b) to add to the common property, alter the common property or erect a new structure on common property for the purpose of installing sustainability infrastructure,

(c) to change the by-laws of the strata scheme for the purposes of the installation or use (or both) of sustainability infrastructure.

WAS MOTION 7 A "SUSTAINABILITY INFRASTRUCTURE RESOLUTION"?

1. I do not agree with the applicant's submission that, in answering this question, the Tribunal must consider "whether the purpose of the majority of lot owners in voting to change the façade sliding windows to awning windows ... was energy efficiency." (AO 15)
2. Rather, the definition of a 'sustainability infrastructure resolution' points to the purpose of the change to the common property.
3. Therefore, the relevant question is whether the purpose of changing to the new windows is to reduce the consumption of energy or to increase the efficiency of its consumption, or to reduce greenhouse gas emissions ("sustainability improvements").
4. The applicant contends:

"Energy efficiency was not even within the consciousness of those aggressively arguing for awning windows until after the Tribunal's 21 August 2024 decision." (AO 20)

1. The applicant refers to evidence including two letters from strata committee members to lot owners dated 2 May 2024 and 7 October 2024. The applicant points out that neither letter refers to energy efficiency. The earlier letter focuses on the windows' compliance with wind and water pressure loadings, referring to Mr Wells' view that sliding windows would leak.
2. Weighing against that evidence, however, is the agenda of the meeting on 15 October 2024 with annexed documents, including:

(1) Baam Consulting specifications dated 21 December 2023 by N Wells;

(2) Baam Consulting Tender Reconciliation dated 16 February 2024 prepared by N Wells, containing tenders from Everest Contracting, RM Watson and Preservation Technologies;

(3) Sustainability Infrastructure Assessment by Baam Consulting dated 19 September 2024

(4) Email from Mr Wells of Baam Consulting to the strata manager dated 24 June 2024;

(5) Email from Mr Wells of Baam Consulting to the respondent's legal representative dated 25 June 2024.

1. By Motion 4 of 15 October 2024, the documents numbered (1), (2) and (3) above were tabled for consideration before the vote regarding the windows took place.
2. The agenda and annexures make it clear that the purposes of the change to the new windows included:

(1) To reduce energy consumption and increase energy efficiency;

(2) To reduce greenhouse gas emissions.

1. The Sustainability Infrastructure Assessment stated:

"The improved energy efficiency rating of the proposed new awning window assemblies contributes to the necessary building upgrades required to meet the minimum standards of NCC Section J which is similarly associated with the SSMA 2015 Sec 132B.

The objectives of the NCC Section J are to reduce energy consumption and energy peak demand, reduce greenhouse gas emissions and improve occupant health and amenity. The specified windows, with their superior thermal properties compared to the existing windows, will significantly help in reducing the building's consumption of energy and reduce greenhouse gas emissions.

All three window options provided in the project specifications have superior energy efficiency properties in comparison to the existing windows (circa 1972)."

1. Motion 5 of 15 October 2024, passed prior to Motion 7, adopted the Sustainability Infrastructure Assessment.
2. The Baam Consulting Tender Reconciliation - also annexed to the agenda - identified 3 window options, distinguished by their energy efficiency, as measured by their U-value (thermal transmittance) and SHGC (Solar Heat Gain Coefficient).
3. The email from Mr Wells of 25 June 2024 said that, although all options would perform better than the existing windows, none of the options exceed the minimum requirements of the National Construction Code.
4. Rather than adopt the cheapest option which would have replaced the existing single-glazed glass with new single-glazed, by Motion 8, the new windows were confirmed as thermally broken double-glazed system, a more energy efficient option.
5. The new windows have other purposes: they also provide light, ventilation, improved safety and security. According to Mr Wells, awning windows also protect against rain ingress. The purpose of some lot owners in voting in favour of the resolution may also have been their preference for awning windows over sliding windows. Regardless of the various purposes, sustainability improvement was a purpose and plainly at the forefront of the 15 October 2024 meeting agenda.
6. The applicant submits:

"The owners were badly misled on the legality and weatherproofing performance of replacing sliding windows with sliding windows. The evidence of the façade engineer, Mr Naderi, is that procuring suitable compliant sliding windows with the same energy efficiency ratings as the awning windows put forward would be straightforward for a suitably experienced member of the industry. Indeed, the layperson Applicant was able to do so." (AO 21)

1. I make no finding about whether the lot owners were misled. It is irrelevant to the issue for determination, as is the ease of procuring compliant sliding windows and their comparable energy efficiency.
2. In closing, the applicant's legal representative submitted that pursuant to s 132B, sustainability improvements must be the "key" if not the "only or dominant" purpose.
3. I am not persuaded. This submission is not supported by any authority. Nor does it find support in the Second Reading Speech of the Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020, 17 June 2020, relevantly:

"Lowering the voting threshold in this way will ensure that the Act does not stand in the way of the genuine desire of the majority of lot owners in strata to unlock the potential of sustainable energy and other improvements that reduce the environmental impact of the scheme. Solar panels were the obvious example put forward by the Government of what the reform means for strata buildings. However, sustainability infrastructure potentially includes a broad range of initiatives, so the bill has been drafted to ensure the benefit of the reduced voting threshold is available for any type of installation so long as its purpose is improved sustainability.

Accordingly, the bill defines "sustainability infrastructure" to mean changes to common property for any of the following purposes: to reduce or increase the efficiency of energy or water consumption; to reduce or prevent pollution; to reduce the amount of waste sent to landfill; to increase the recovery or recycling of materials; to reduce greenhouse gas emissions; and to facilitate the use of sustainable forms of transport, for example, by installing electric vehicle chargers. Changes to common property are intended to be interpreted broadly and include installing, removing, modifying or replacing any part of the common property. That ensures that the benefit of the reduced voting threshold of the Act is not only available to installation of brand new infrastructure - say, solar panels on the roof - but also includes upgrades to existing infrastructure, such as replacing exhaust fans for a garage with a more energy‑efficient system.

... the new law has been drafted to allow owners corporations to decide for themselves how to pursue sustainability in their scheme ... I commend the sustainability infrastructure reform in the bill as a balanced, fair and flexible contribution to encouraging strata schemes to make their buildings more sustainable into the future."

1. To confine the operation of s 132B to changes with the "dominant" or "key" purpose of sustainability improvement would contradict Parliament's intention to encourage "a broad range of initiatives". Explicitly, "[c]hanges to common property are intended to be interpreted broadly."
2. The narrow construction proposed by the applicant would not promote the amendment's underlying object of encouraging "strata schemes to make their buildings more sustainable into the future." (s 33 Interpretation Act 1987 (NSW)).
3. Thus, the reduced voting threshold includes "upgrades to existing infrastructure", clearly applicable in the circumstances of this case. Just as replacing "exhaust fans for a garage with a more energy‑efficient system" reduces the environmental impact of the scheme, so does replacing aged windows with more energy-efficient windows.
4. Further, the juxtaposition in the speech of solar panels (whose key or dominant purpose is energy efficiency) with garage exhaust fans (which likely have several purposes), makes it clear that the test is "purpose", not "dominant purpose".
5. I also do not accept the applicant's submission that:

"Parliament cannot have intended that a building element would be 'sustainability infrastructure' if it only meets the minimum energy requirements." (AO 22)

1. The Second Reading Speech makes no reference to minimum requirements. Rather, it emphasises improving efficiency and reducing the environmental impact of the scheme. This may include upgrading outdated infrastructure to meet contemporary compliance standards.
2. For all these reasons I find that the new windows are sustainability infrastructure within the meaning of s 132B(2) and Motion 7 is therefore a sustainability infrastructure resolution.

WAS THE REQUIREMENT IN s 132B(1)(a) OF THE SSMA MET PRIOR TO THE PASSING OF MOTION 7?

1. For the following reasons I find that before the sustainability infrastructure resolution was approved, the owners corporation considered the cost of the sustainability infrastructure and works including any expected running and maintenance costs:

(1) The cost of the Baam Consulting Specifications and Tender Reconciliation included the scope of works of the infrastructure and its cost based on 3 tenders;

(2) The Baam documents were annexed to the agenda;

(3) The Baam documents were tabled prior to the vote on Motion 7;

(4) By Motion 6, the owners corporation considered the costings prior to the vote on Motion 7;

(5) By Motion 6, the owners corporation considered the annual running and maintenance costs, assessed as "minimal", prior to the vote on Motion 7.

1. Whether sliding windows have less maintenance costs than awning windows, as Mr Nader gave evidence, is irrelevant to s 132B(1)(a) which does not require comparative costings.
2. The applicant refers to amended resolution 20 of the 15 October 2024 meeting:

"Upon the amended resolution becoming the motion, it was RESOLVED that BAAM/ G. James be requested to provide a report showing thermal brake frames are cost/benefit effective and the amount of energy they would save would be worth the money. The report at their cost."

"It is plain from the passing of that resolution that the consideration required by s 132B(1)(a) was not completed prior to voting upon Motion 7 as the owners were actually still trying to find out how much the measures that would supposedly reduce energy would cost after the passing of Motion 7." (AO 26)

(1) By amended resolution 20, the owners corporation sought further information about the energy-saving benefits of thermal brake frames relative to their cost;

(2) Amended resolution 20 did not purport to change the Baam scope of works or the tender reconciliation, which included windows that were thermally broken double glazed;

(3) As above, the owners corporation did consider the costings of the infrastructure outlined in the Baam scope of works prior to voting on Motion 7;

(4) Section 132B(1)(a) does not require consideration of the infrastructure's energy efficiency prior to approving the sustainability infrastructure resolution.

1. The Tribunal orders that the application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

27 January 2026 - Amendment to Catchwords - Strata Schemes Management Act 2015 (not 1996)