Feitelson v The Owners - Strata Plan No. 63429 [2025] NSWCATCD 118;

Owners Corporation SP32033; Patrick and Valerie Mullins [2015] NSWCATCD 23

Maple v The Owners - Strata Plan No. 8950 [2021] NSW CATCD 108

Hoare and Ors v The Owners Corporation - Strata Plan No. 73905 [2018] NSW CATCD 45

Soares v The Owners - Strata Plan No. 14593 [2019] NSWCATAP 35

Coscuez International Pty Ltd v The Owners - Strata Plan No. 46433 [2022] NSWCATAP 147

Franklin v The Owners Strata Plan No. 87497 [2022] NSW CATCD 210

Philip Anthony Feitelson and Anne Christine Davis, Applicants

Mr David D. Knoll AM of counsel instructed by Sachs Gerace Lawyers for the Applicants

Mr Victor F. Kerr SC instructed by Madison Marcus Law Firm for the Respondent

1. This strata scheme application was filed in the Tribunal on 14 August 2023 (Application).
2. The Application concerns a strata scheme known as Pacific Villas, which forms part of, and was built at the same time as, the Pacific Bay Resort . Pacific Villas comprise 36 villas, gardens, two swimming pools and other facilities, situated on a ridge of the Great Dividing Range as it meets the Pacific Ocean at Charlesworth Bay Beach, outside Coffs Harbour on the northern NSW coast. Pacific Villas was constructed in about 2000 and Strata Plan No. 63429 (SP63429) was first registered shortly thereafter.
3. Mr Philip Feitelson (First Applicant) is the registered proprietor of Lot 1 (Villa 9) in SP63429.
4. Dr Anne Davis (Second Applicant) is the registered proprietor of Lot 18 (Villa 8) and Lot 19 (Villa 7) in SP63429.
5. The Respondent is the body corporate constituted under the name "The Owners - Strata Plan No. 63429" (OC) pursuant to s.8 of the SSMA.

1. Pursuant to the original application which was filed in the Tribunal on 14 August 2023, the Applicants sought the following relief against the Respondent:

(1) An order pursuant to s.237 of the SSMA appointing a compulsory strata managing agent to exercise all functions of the Respondent including the functions of chairperson, secretary, and treasurer for a period of 24 months from the date of order.

(2) An order pursuant to ss.229, 232 and 241 of the SSMA that the secretary and chairperson of the Respondent shall deliver, and cause its agents to deliver, all the Respondent's books and records to the compulsory strata managing agent so appointed within seven days of the date of order.

(3) An order pursuant to either s.232 or s.229 of the SSMA that the Respondent, acting by and through any compulsory strata managing agent appointed above, is to, at its own cost, use suitably qualified licence contractors to carry out the maintenance and repairs to the common property of the Respondent listed in the report of Christopher Ward dated 1 June 2023 and of Scott Taylor dated 30 May 2023, such work to be undertaken in a proper and workmanlike manner in accordance with all applicable building codes and standards so as to achieve compliance with s.106 of the SSMA, such work to be carried out as soon as practicable but in any event within 24 months.

(4) An order pursuant to ss.106 and 232 of the Act that the Respondent pay the Applicants damages in the sum of $21,915.09.

(5) An order pursuant to s.149 of the Act that the by-law described as special by-law 83 in motion 7 of the Notice of Extraordinary General Meeting dated 23 November 2021, is prescribed as a change to the by-laws of the Respondent within the wording that appears in Attachment 8 of the Notice of the EGM and with the proposed special by-law 83 to operate on and from the date of these orders.

(6) An order pursuant to ss.229 and/or 241 and/or 232 and/or 246 of the SSMA that the Respondent promptly, and by no later than 28 days after the making of such order, do all acts necessary to register and record the additional by-law subject of the proceeding order on the title of the common property.

(7) An order pursuant to s.232 of the SSMA that any expenses incurred by the Respondent pursuant to an order of the Tribunal or any money (including costs) payable by the Respondent to the Applicants pursuant to an order of the Tribunal and this proceeding must be paid from contributions levied on lot owners in proportion to the unit entitlements of each lot owner but excluding the Applicants' lots.

(8) An order that the Respondent pay the Applicants' costs of and incidental to the proceeding.

(9) Such further or other order as the Tribunal considers fit.

1. The relief sought by the Applicants changed with leave being granted to amend the application on 19 June 2024 and in respect of which an Amended Application was filed and served by the Applicants on or about 14 August 2023.
2. The hearing proceeded on the basis that this application and Proceeding No. SC23/29978 were heard together and that evidence in one was evidence in the other.
3. There was some commentary between the parties about the precise relief that the Applicants ultimately sought.
4. Ultimately the final orders and relief that the Applicants sought after the hearing concluded were contained in Annexure 2 to the Applicants' Written Submissions dated 8 November 2024 and were to the following effect:

(1) An order pursuant to section 237 of the Strata Schemes Management Act 2015 (the Act) appointing SCMS-Strata Pty Ltd (licence number 1052225) as strata managing agent to exercise all functions of the Respondent owners corporation including the functions of chairperson, secretary and treasurer of the Respondent for a period of 24 months from the date of these orders. The appointment shall be on the terms and conditions as set out in the proposal of SCMS-Strata Pty Ltd in Exhibit B.

(2) An order pursuant to sections 229, 232 and 241 of the Act that the secretary and chairperson of the Respondent owners corporation shall deliver, and cause its agents to deliver, all the Respondent owners corporation's books and records to the agent appointed pursuant to order 1 within 7 days of the date of these orders.

(3) An order pursuant to either section 232 or section 229 or section 241 of the SSMA that, the Respondent, acting by and through any manager appointed pursuant to order 1, or itself if no such order is made, is to, at its own cost, using suitably qualified and where required licensed contractors, carry out the maintenance and repairs to the common property listed in the (engineering) reports, such work to be undertaken in a proper and workmanlike manner in accordance with all applicable codes and standards so as to achieve compliance with s 106 of the SSMA, and such work to be carried out as soon as practicable, but in any event within 24 months.

(4) An order pursuant to sections 106 and 232 of the Act that within 28 days the Respondent pay to the Applicants damages in the amount of $21,915.09.

(5) An order pursuant to section 149 of the Act that the by-law, described as proposed special by-law 83 in motion 7 in the notice of extraordinary general meeting dated 23 November 2021 (the EGM), is prescribed as a change to the by-laws of the strata scheme, with the wording that appears in attachment 8 of the notice of the EGM, and with the proposed special by-law to operate on and from the date of these orders.

(6) An order that the Respondent owners corporation record and register the by-law prescribed pursuant to order 5 in accordance with section 246 of the Act within 28 days of these orders being made.

(7) An order pursuant to section 150 of the Act that the following by-laws of Strata Plan 63429 be declared invalid.

(a) By-law 11.

(b) By-law 15.

(c) By-law 17.

(d) By-law 25.

(e) Special by-law 34.

(f) Special by-law 65.

(g) Special by-law 86.

(h) Special by-law 87.

(i) Special by-law 88.

(j) Special by-law 89.

(8) An order that the Respondent owners corporation record and register the removal of by­laws pursuant to order 7 in accordance with section 246 of the Act within 28 days of these orders being made.

(9) An order pursuant to section 24 of the Act that the special resolutions 4, 5, 7 and 9 passed at the general meeting on 13 November 2023 to effect special by-laws 86, 87, 88, and 89 be declared invalid.

(10) The parties be heard as to costs.

1. Although the above relief appeared for the first time in written form as Annexure 2 to the Applicants' Written Submissions dated 8 November 2024, it was this form of relief that the Respondent addressed and responded to in both its Written Submissions dated 13 November 2024 and in its Reply Submissions dated 31 January 2025. For these reasons, it is against this relief that the Tribunal shall consider and weigh the evidence of the parties in its determination.

1. There have been at least three previous applications in the Tribunal between these parties. They should be considered in some detail as they form part of the evidence proffered by the Applicants in these proceedings.

1. In Davis v The Owners - Strata Plan No. 63429, the Tribunal ordered the Respondent on 17 December 2014 to 'undertake such steps necessary to ensure compliance with special by-law 47'.
2. Special by-law 47 permitted lot owners to make a non-structural extension of any patio to the north providing the extension did not extend beyond 800mm. Lot 21 (Villa 5) apparently breached this by-law without approval from the OC.
3. The Respondent complied with the Tribunal's order by passing a special resolution at its AGM on 21 March 2015 to retrospectively approve the patio extension of Lot 21 and of several other lots. However no amended by-law was registered until 2021 and was thus out of time as s.48(2) of the SSMA1996 required changes to by-laws to be registered within 2 years in order to have any force or effect.
4. The Second Applicant raised this oversight in the current application and the Respondent passed a further special resolution at an EGM on 13 November 2023 to approve these same patio extensions pursuant to s.108 of the SSMA and to retrospectively make a new common property rights by-law pursuant to s.143 of the SSMA. This new by-law was registered on 3 May 2024 after the current application was filed.

1. The second application, Davis v The Owners - Strata Plan No. 63429 [2017] NSW CATCD 7, in a decision dated 31 January 2017 determined:

(1) The Adjudicator award's orders dated 21 April 2016 dismissing the First Applicant's application were revoked; and

(2) Ordered the Respondent to affect all repairs to common property necessary to prevent water ingress into the main bedroom of the upper storey of Lot 18 (Villa 8) on or before 30 May 2017.

1. The Second Applicant had commenced these proceedings in 2016 to prevent water ingress into the main bedroom of the upper storey of Lot 18 which had apparently been occurring since about 2010.
2. The Tribunal found that the glass sliding doors of the main bedroom which abutted a balcony and which formed the lot boundary were in fact common property and therefore the maintenance of these glass sliding doors was the duty of the Respondent (and not the lot owner) to prevent water ingress.
3. The Respondent contended that the Second Applicant had undertaken work involving the removal of the glass sliding doors in 2010 in order to carry out waterproofing of a replacement deck and that this work had resulted in water ingress. The Tribunal rejected this submission.
4. The Tribunal found that the sliding glass doors and their fixings and tracks were common property which was to be maintained by the Respondent.

1. On 21 June 2018, the Tribunal handed down its reasons for decision in Davis v Owners Corporation SP63429 [2018] NSW CATCD 27. While part of that decision related to changes in by-laws, consent order 3 was to the following effect_:_

"By consent, the Tribunal orders that the Respondent effect all repairs to or replace common property necessary to prevent water ingress into the main bedroom on the upper storey of Lot 18 by 28 February 2018".

1. This application also dealt with two of the Respondent's by-laws which the Tribunal invalidated. The first, by-law 59, was approved by a special resolution of the OC at an EGM on 20 September 2014 and was subsequently registered by the Respondent on 18 December 2014 and given dealing number AJ86667D at LRS. The by-law enabled the Respondent to charge an "Annual Fee to an Owner granted Exclusive use and/or Special Privilege to undertake Building Improvements to the lot where the Incremental Replacement Value of the Improvements exceeds $50,000.00 (Indexed, as defined)."
2. This by-law in effect required certain villas in the strata plan, including the Second Applicant's, which had carried out renovation works which increased the value of their lot and in turn increased the insurance liability of the Respondent, to be passed on to the individual lot owner. The Tribunal considered sections 82, 142, 143, 160 and 83 of the SSMA1996 and determined that the Respondent did not have the power to make such a by-law and, as such, it was invalid.
3. The Tribunal also invalidated the Respondent's by-law 19 which attempted to pass on to individual lot owners responsibility to repair and maintain some of the common property of the owners corporation. Clauses 19.5 and 19.6 of the by-law for instance require lot owners to maintain and clean certain items of the common property including pressure washing of external walls, storm gutters, driveways and walkways and sealing and coating of driveways and walkways on or near their lot. They also include maintenance and repairs to water taps, wooden louvres to the windows, and maintenance and repairs on any changes or items added to the common property by the lot owner since the lot was registered.
4. Applying Owners Corporation SP32033; Patrick and Valerie Mullins [2015] NSWCATCD 23, the Tribunal found that the SSMA does not permit an owners corporation to delegate to lot owners the obligation to repair and maintain common property and that the duty under s.106 of the SSMA for an owners corporation to repair and maintain common property is a strict duty which cannot be delegated.
5. For these reasons, by-law 19 was also repealed and replaced on 8 December 2014, and was removed from Folio CP/SP63429 at LRS.
6. The Tribunal records these matters to disclose the history of disputation between the parties and as the context for the current application.
7. The Applicants reference these previous applications and their outcomes to evidence the dysfunction of the OC and its failure to competently attend to, and carry out, its governance and maintenance duties either in a timely manner or at all. By contrast the Respondent submits that these applications are historic, that the orders arising from them have now been addressed by the Respondent, and that no other lot owners in SP 63429 have complained about these omissions.

1. The hearing of this application proceeded at Coffs Harbour for three days of lay evidence on 19-21 June 2024, then for a further day in Sydney on 15 November 2024 in respect of the expert conclave.
2. A timetable was then made for written submissions which concluded on or about 31 January 2024. The decision was then reserved by the Tribunal.
3. It is fair to say, and it is no criticism of the parties, that with this rich history of disputation, the materials provided by both parties in support of their respective positions were voluminous.
4. There was no agreed Court Book or Joint Tender Bundle of the parties. Each party filed his, her or its own evidence. The Applicants filed six volumes of documents which included the following evidence:

(1) Application form and supporting material;

(2) Affidavit of Anne Davis dated 9 August 2023;

(3) Affidavit of Paul Owen dated 26 July 2023;

(4) Affidavit of Mary-Rose George dated 21 July 2023;

(5) Report of Chris Wood dated 1 June 2023; and

(6) Report of Scott Taylor dated 30 May 2023.

1. The Applicants also filed two further volumes of evidence in reply on or about 15 March 2024 including:

(1) Report of Chris Wood dated 8 March 2024;

(2) Report of Scott Taylor dated 12 March 2024; and

(3) Second affidavit of Anne Davis dated 13 March 2024 and Exhibit AD-2.

1. The Respondent filed and served six volumes of documents containing:

(1) Statutory Declaration of Ashley Goulding dated 15 December 2023;

(2) 29 statements of lot owners in support of the current management;

(3) Statement of Hudson Greenway dated 8 December 2023, garden contractor;

(4) Statutory Declaration of Diane Fuscaldo, secretary/treasurer of SP63429, dated 15 December 2023;

(5) Defects Report of Greg Killen dated 14 December 2023; and

(6) Garden Report of Richard Elliott dated 21 November 2023.

1. The Respondent also served three further volumes of Respondent's supplementary evidence in reply including:

(1) Statement of Diane Fuscaldo dated 11 November 2024;

(2) Statement of Geoff Savige dated 22 October 2024;

(3) Statement of David Hayes dated 18 October 2024; and

(4) Joint Scott Schedule dated 11 November 2024.

1. The parties provided opening submissions, closing submissions after the three day hearing in Coffs Harbour and then further written submissions in response to the expert conclave held in Sydney on 15 November 2024.
2. In this way, the Tribunal received the following written submissions from the Applicants:

(1) Applicants' Outline of Submissions dated 8 November 2024 (46 pages) plus supporting documents and annexures including transcript of the hearing;

(2) Applicants' Outline of Submissions in relation to oral evidence on Day 4 dated 9 December 2024 (17 pages); and

(3) Applicants' Outline of Reply Submissions dated 21 January 2025 (27 pages plus annexures).

(1) Respondent's Written Submissions dated 13 December 2024 (115 pages);

(2) Respondent's Reply Submissions dated 31 January 2025 (29 pages); and

(3) Respondent's pre-hearing Submissions dated 11 November 2024 (108 pages).

1. The Tribunal's file, together with evidence, documents and submissions of the parties comprised approximately five archive boxes.
2. The Tribunal shall now deal with the claims, evidence and relief sought by the Applicants.

1. In its Outline of Submissions, the Applicants advanced three bases upon which a strata managing agent should be appointed to SP63429 pursuant to s.237 of the SSMA. They are:

(1) The management of SP63429 is not functioning satisfactorily within the meaning of s.237(3)(a) of the SSMA. In particular, the OC has a persistent and profoundly inadequate appreciation of important statutory responsibilities which cannot be allowed to continue;

(2) The OC has failed to perform its duties within the meaning of s.237(3)(c) of the SSMA including the duty to repair under s.106 of the SSMA. In particular, the OC has persistently failed to undertake adequate repairs to Villas 7, 8 and 9 owned by the Applicants; and

(3) In relation to Villa 8, the persistent failure to repair also reflects the failure to comply with the requirement imposed on the OC by a Tribunal order in 2017 and 2018.

1. The circumstances in which an order to appoint a strata managing agent may be made are set out in s.237(3) of the SSMA:

"(3) The Tribunal may make an order only if satisfied that -

(a) the management structure of a strata scheme the subject of an application under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or

(b) the owners corporation has failed to comply with a requirement imposed on the owners corporation by an order under this Act, or

(c) the owners corporation has failed to perform one or more of its duties, or

(d) the owners corporation owes a judgment debt."

1. The Tribunal must be satisfied based on sufficient evidence that one or more of the matters set out in s.237(3)(a)-(d) has occurred. After this has been satisfied, the Tribunal must also be satisfied there are appropriate discretionary reasons for the appointment of a compulsory strata manager. The exercise of that discretion must into account the fact the appointment of a compulsory strata manager is a serious or draconian matter: Maple v The Owners - Strata Plan No. 8950 [2021] NSW CATCD 108.
2. Other matters that may impact the exercise of the discretion also include, from Maple's case:

(1) The nature or duration of the actions or inactions of the owners corporation (or the level of dysfunctionality) must justify the appointment of a compulsory strata manager;

(2) Past inadequacies of the management of the owners corporation may gravitate against the appointment of a compulsory strata manager if for instance there has been a recent change in behaviour involving compliance or the election of a new strata committee that has adopted an approach that accords with the owners corporation complying with its obligations;

(3) The Tribunal should focus upon objective evidence. It is likely that a lot owner making an application for the compulsory appointment of a strata manager is subjectively dissatisfied with the current management of the owners corporation however the appointment of a compulsory strata manager requires more than the subjective belief of that lot owner/applicant.

1. In Hoare and Ors v The Owners Corporation - Strata Plan No. 73905 [2018] NSW CATCD 45 at [199], the Tribunal said:

"The appointment of a compulsory strata manager is a serious measure not to be taken lightly, because it removes the democratic process that has been established under the SSMA for the owners corporation to govern itself. In essence, it places the owners corporation into the hands of an administrator for a period of time."

1. The Second Applicant's affidavit dated 9 August 2023 deals with the issues upon which the Applicants rely to assert breaches of s.237(3)(a), (b) or (c) of the SSMA. These matters include:

(1) Breach of Tribunal orders dated 21 June 2018, including breach of consent order 4 for the OC to retain an independent qualified engineer to provide a scope of works in order to comply with order 3 and deregistering by-law 19 by 31 August 2018 and by-law 59 by 31 August 2018;

(2) Failing to register a replacement special by-law 46.2 within 60 days of the date of consent being 8 November 2017;

(3) Breach of Tribunal orders dated 17 December 2014;

(4) The OC seeking to enforce special by-law 46 against the First Applicant for failure to comply with special by-law 46 in July 2014 and in September 2016 for failing to withhold and consent to a proposed amendment to special by-law 46 to include references to work carried out by the First Applicant in Villa 8. Both OC applications were unsuccessful in the Tribunal;

(5) Failure to properly maintain and the keep the common property in a state of good and serviceable repair, including

(a) Ongoing water ingress into Villa 8 since 2009 and at Villas 7 and 9 since 2016;

(b) Deferring roof flashing works from 2017 until around November 2022 which were completed in June 2023;

(c) Balcony repairs, including issues with excessive rust to the steel balcony beams and support brackets and rotting to the wooden balcony beams since 2006;

(d) Termite issues;

(e) Cleaning of exterior lots;

(f) Pool heating;

(g) Garden maintenance;

(6) Budget issues, including failure to manage the capital works fund and administrative fund in a proper manner;

(7) Financial mismanagement, although this appears to relate to predominantly the budgeted amount for an optional sliding door replacement in a balcony by-law and seeking contribution from each lot owner of 33% of the cost of the optional replacement. The Applicants regard this as an attempt by the OC to shift costs to lot owners to keep levies low;

(8) Insurance claim reimbursement of an insurance claim by the First Applicant for storm damage at Villa 8 less a $10,000.00 excess incurred by the First Applicant;

(9) Inconsistent by-laws and procedures in respect of by-laws 1, 2, 5, 17, 15 and 3; and

(10) Errors in strata records.

1. In response, the Respondent relied upon the lay evidence of:

(1) Ashley Goulding, strata manager;

(2) Diane Fuscaldo, treasurer and secretary of the strata committee of SP63429; and

(3) Statement of the owners of Villas 1-6, 10-12, 14, 16-20, 22, 25, 36-45, 5 and 28; and

(4) Statement of Hudson and Greenway, garden contractors.

1. Relevantly, Mr Goulding was a strata manager at Ace Body Corporate Management (Ace), Coffs Harbour and has been the strata manager of SP63429 since 31 May 2013. He annexed to his affidavit much of the strata history of the OC during that time. He gave evidence that:

(1) There was a current strata managing agent's agreement between Ace and SP63429 dated 28 June 2022;

(2) The buildings at SP63429 were currently insured with CHU up to an amount of $61,311,800.00;

(3) The OC is presently in a staple and solvent financial position and, as at the end of financial year 28 February 2023, had $27,906.00 in its administrative fund, $722,926.00 in its capital works fund and $750,832.00 in assets;

(4) Included all notices of minutes of AGM's and EGM's for the last three years of SP63429;

(5) Included notices and minutes of strata committee meetings for the last three years;

(6) Listed the following annual or regular maintenance activities of the OC including:

(a) Termite control activities with Circular Pest Control;

(b) Annual gutter cleaning for all villas and pool cabana;

(c) Annual treescape pruning;

(d) Annual northern slopes slashing;

(e) Weekly pool cleaning and maintenance; and

(f) Weekly garden and amenities maintenance;

(7) That the OC had completed in the last three years the following building and maintenance rectification works including:

(a) Building expansion joint maintenance of Villas 1-24;

(b) Refurbishment of front entry complex including lighting upgrade and painting (March 2021);

(c) Diagnosis and resolution of window flashing issues at Villas 25-36 (February 2021 - September 2021);

(d) Cleaning, painting and refurbishment of eastern pool cabana (March 2021);

(e) Arborist Report and tree maintenance on northern slopes (July/August 2021);

(f) Renewal upgrade of BBQ gas connections at east and west pools (December 2021);

(g) Installation of solar energy system on eastern pool cabana (January 2022);

(h) Upgrade of street bollard lights to LED (June 2022);

(i) Replacement of built-in BBQ at west pool (June 2022);

(j) Replacement of built-in BBQ at east pool (November 2023); and

(k) Planning and implementation of major planned maintenance works for V1-24, Zone of Complex (2021-2023).

(8) Mr Goulding noted that the ability of the OC to plan, implement and conduct repairs and maintenance in the last five years had been impacted by a range of events including:

(a) La Nina weather event which lasted from 2020-2023 bringing unprecedented rainfall;

(b) Major flooding in northern New South Wales;

(c) A major hail storm in Coffs Harbour in October 2021; and

(d) The global Covid-19 pandemic which resulted in shutdowns, supply chain disruptions and limitations during 2020-2022, including the sourcing of building and roofing materials for maintenance work of the OC.

(9) In 2022, lot owners voted at the OC's AGM to perform the second maintenance cycle for Villas 1-24. Between 2022 and 2024, the most recent cost estimate presented for this Planned Works Project being $1.35 million (an average of $56,000.00 per villa - see p.11 on Attachment 4 of the AGM notice for the meeting dated 27 April 2023).

(10) The works were substantially completed in August 2023.

(11) Generally the works were completed on Villas 1-24 including but not limited to:

(a) Building, cleaning and painting;

(b) Maintenance to vertical building wall expansion joints;

(c) Cyclical rust treatments and painting of balcony steel beams (every three years);

(d) Roof works including 100% replacement of all lead flashing and replacement of nearly 100% of parapet wall cladding boards;

(e) Replacement of north facing stairwell window in selected villas;

(f) Replacement of gutters, fascia and soffits on north side as required;

(g) Cleaning and replacement of front entrance polycarbonate ceilings damaged by hail as required;

(h) Roof tiled pointing as required;

(i) Post-works cracked tile replacements after all boots were off the roofs;

(j) Mould retardant treatment applied to all roofs as a final step.

(12) The OC and Mr Goulding used local tradespeople to undertake this work as they had established longstanding relationships with trusted and competent people around building, repair and water ingress issues in the building's 22 year existence.

(13) Mr Goulding denied that continuing water ingress claims that were the responsibility of the OC have been substantiated or that there were current water leaks.

(14) Mr Goulding indicated there had been unplanned building repairs in each of the four financial years ending 28 February 2020, 2021, 2022 and 2023 in the sum of approximately $20,000.00 or less.

(15) Mr Goulding denied that the strata records of SP63429 were incomplete or unkept or that the First Applicant had made any allegation of this after inspection of the strata records in March 2023.

(16) Mr Goulding also said that occasional breaches of by-laws of SP63429 are dealt with by the strata committee considering the complaint or reaching out to the owner in person to resolve the matter amicably.

(17) In summary, Mr Goulding considered that SP63429 was functioning satisfactorily and that the appointment of a compulsory strata managing agent would not be in its best interests as it would first deprive the OC of a committed and proactive strata committee and experienced strata manager, remove the democratic process under the SSMA and perhaps deny the OC of the benefits of the experienced trade people who are familiar with the buildings and provide cost effective services.

1. The Applicants in their submission considered that Mr Goulding was an 'unimpressive strata manager witness' and that his conduct was generally reactive to OC instructions, did not satisfactorily understand the OC's statutory obligations and therefore was of little assistance to the OC in preventing it from acting in a dysfunctional manner.
2. Diane Fuscaldo, the secretary and treasurer of the strata committee of SP63429 since 2013 also provided a lengthy statutory declaration. She gave evidence to the following effect:

(1) SP63429 is not dysfunctional and it attends to all its required functions including financial management, holding general meetings, notifying lot owners of AGM's and EGM's, holding regular strata committee meetings, enforcing by-laws and addressing building maintenance work;

(2) The Applicants have attempted to create an illusion of dysfunctionality by "nit picking their way through insignificant issues" that have arisen and been dealt with satisfactorily by the OC;

(3) Programmed work to restore balconies, termite control and similar matters;

(4) Where there is an identified systemic problem in the villas, the practice appears to be for the OC to prepare a maintenance schedule for repairs to be made to the specific item (balconies, painting, pathways, sliding doors) over a period of time in order to spread the expense; and

(5) Other unique items such as the gate intercom has been changed to a keypad operation.

1. In respect of comments on specific leaks to Villas 7, 8 and 9 (21), Ms Fuscaldo said she was not aware of any 'open leak' in Villa 7 or 9 and said the only known reported water ingress in Villa 8 which was current "is likely caused by the owner's own renovations". She also said that this was not the responsibility of the OC to repair, notwithstanding this conflicts with the findings and orders of the Tribunal in the second application made by the First Applicant in 2017.
2. The Tribunal shall consider some of the more important evidentiary matters discretely which were raised by the Applicant in support of the application to appoint a compulsory strata managing agent pursuant to s.237 of the SSMA.

1. The Tribunal outlines above the three applications that were brought by the Applicant in 2014, 2017 and 2018. The Applicant relies on these matters to support her application pursuant to s.237 of the SSMA in two distinct ways:

(1) That the OC breached the Tribunal orders dated 17 December 2014, 31 January 2017 and 21 June 2018; and

(2) That those proceedings support the contention that the OC has unnecessarily pursued legal action without proper grounds.

1. The substance and outcome of the three proceedings resulting in orders dated 17 December 2014, 31 January 2017 and 21 June 2018 is outlined in paragraphs 9-23 above.
2. In respect of the order dated 17 December 2014, the OC acknowledges in its submissions that it passed a special resolution at its AGM on 21 March 2015 to approve the Lot 21 patio extension and that of several other lots assuming this had resolved the issue.
3. When the First Applicant raised the issue that no amended by-law was registered until 2021 and was therefore out of time, the OC passed a further special resolution at an EGM held on 13 November 2023 to approve the same patio extensions pursuant to s.108 of the SSMA and to make a new common property rights by-law pursuant to s.143 of the SSMA. This By-law 90 was registered on 3 May 2024.
4. The OC submits that any failure to comply with the Tribunal's order dated 17 December 2014 has now been addressed, that both the 2015 and 2023 special resolutions were both overwhelmingly supported by lot owners (78% and 87% respectively) and that no lot owner, other than the First Applicant, has complained about these encroachments. The Tribunal accepts this submission.
5. On 31 January 2017, the Tribunal ordered the OC "to effect all repairs to common property necessary to prevent water ingress into the main bedroom on the upper storey of Lot 18 on or before 30 May 2017".
6. The OC replaced the glass sliding door in 2017 being the course of action which the Tribunal had identified as the likely solution for the water penetration issue. The OC submits that was full compliance with the Tribunal's order.
7. The OC states that the fact that water now ingresses underneath the new glass sliding door and into the roof space below is a different and subsequent issue which is outside the terms of the original order.
8. In respect of the Tribunal orders made on 21 June 2018, the Tribunal ordered:

(1) By consent, to register a replacement special By-law 46.2 in the agreed form attached to the orders within 60 days (Orders 1 and 2);

(2) By consent, to retain an independent qualified engineer to provide a scope of works for the repair or replacement of common property to prevent water ingress into the main bedroom on the upper storey of Lot 18 (Orders 3 and 4);

(3) To register a change of by-laws removing By-law 19 and special By-law 59 by 31 August 2018 (Orders 7 and 10); and

(4) To refund payments made by Dr Davis under special By-law 59 and By-law 19 (Orders 8 and 11).

1. The OC says that the orders were made on 21 June 2018 and not on 18 November 2017, and that registration on 22 August 2018 was 62 days after the orders were made on 21 June 2018. The delay of two days is of no consequence.
2. The OC also says that the First Applicant complained of an error in a footnote to special By-law 46(2) in the current consolidated by-laws is of no legal affect.
3. The Tribunal does not consider on balance that any of these matters, which have been the subject of previous (perhaps historic) consideration by the Tribunal, remain outstanding and therefore do not warrant active consideration under s.237(3)(b) of the SSMA.
4. In respect of these matters, the Tribunal also does not consider from a review of the decisions and orders made by the Tribunal in each proceeding that there is anything to support the First Applicant's contention that the OC has unnecessarily pursued legal action without proper grounds. While the OC may have failed or not succeeded in the 2014 and 2017 proceedings, and the 2018 proceedings were largely resolved by consent orders, that of itself does not support the contention that the OC has unnecessarily pursued legal action without proper grounds.
5. The First Applicant also alleges that the OC has consistently ignored its obligation under s.106 of the SSMA to maintain and keep the common property in a state of good and serviceable repair. The First Applicant gave evidence of a number of specific areas in which she alleges this has occurred.

1. The Second Applicant alleges that since 2009, Villa 8 has suffered water ingress which was the subject of the 2016 application to the Tribunal.
2. The Second Applicant alleges that since 2016, Villas 7 and 9 have experienced water ingress which existed pre-purchase and are the subject of comments in the reports of Greg Binet from 2015 and 2016.
3. The Second Applicant provided helpful background evidence on the water ingress issues at Villas 7, 8 and 9 at paragraphs 71-176 of her affidavit sworn 9 August 2023.
4. At paragraph 70, she concludes that at the date of swearing the affidavit, the following water ingress still exists:

(1) Villa 7: main bedroom, sliding door, soffit, garage and hallway;

(2) Villa 8: garage, main bedroom, loungeroom, balcony, outdoor terrace, soffit, skylight and hallway;

(3) Villa 9: sliding door, downstairs study, back bedroom, kitchen, lounge and garage.

1. The Second Applicant confirmed water leaks on 5 November 2023 in all three villas. On 6 November 2023 at the direction of Ms Fuscaldo, Mr Murray Binet investigated and identified an ongoing problem with the upstairs tiled balcony of Villa which is leaking into the patio soffit below. As a result of his investigation on 6 November 2023, Mr Binet concluded:

(1) In Villa 7, while there was remnant mould on the main bedroom ceiling from previous water ingress, there is no moisture entering the roof into the cavity above the ceiling and Mr Binet arranged for the repair of the remnant mould by a licenced painter;

(2) In respect of Villa 8, the patio ceiling which had been modified showed a high moisture and a water stain on the garage ceiling was pre-existing and not caused by any recent water ingress;

(3) In respect of Villa 9, there was high moisture in an area next to kitchen cupboards in the living room which, on further inspection, had resulted from a fault in the installation of flashing on the roof above that area which Mr Binet then fixed; and

(4) There was a water stain on the ceiling in the upstairs north-western bedroom which Mr Binet considered was not the result of current water ingress.

1. In respect of this water ingress issue, there is a stark contrast between the parties in their experts' evidence based upon inspections and reports.
2. For instance, the OC maintains that water ingress into the terrace outdoor ceiling in Villa 8 "is likely caused by the Applicant's renovations to the balcony above approximately 10 years ago". This is not withstanding a finding by the Tribunal in the 2017 proceedings rejected this submission: see [80] of Davis v The Owners - Strata Plan No. 63429 [2017] NSW CATCD 7 which resolves this issue finally between the parties. The OC is estopped from seeking to reagitate it seven years later as a defence to any further failure to repair and maintain the common property.
3. In determining the elements that the Second Applicant relies upon to assert the breach of s.106 of the SSMA by the OC, the Tribunal has been handicapped by the numerous and changing issues which the Applicants rely upon.
4. In the original strata application dated 14 August 2023, the Applicants identified at section 4B, paragraph 10, 14 issues directly affecting their Villas 7-9.
5. The application was supported by an expert report from Christopher Wood, a consulting structural and civil engineer dated 1 June 2023. In section 5 of the Wood report, Mr Wood listed 25 issues observed during a site inspection which were not numbered. As the OC comments, there is no explicit correlation between the 25 issues in the Wood report and the 14 issues listed in the original strata application.
6. The OC's expert, Mr Killen, responded to the Wood report dated 14 December 2023. Mr Wood then replied to the Killen report in a further report dated 8 March 2024.
7. Then a further report of Mr Wood dated 17 June 2024 addressed 23 issues raised by the Applicants in respect of Villas 7-9. Again, there was no explicit correlation between those 23 issues, the 14 issues listed in the original strata application or the 25 issues in the Wood report.
8. On 19 June 2024, the Applicants filed with leave an amended strata application in which sought at paragraph 3 of section 4A was generalised to simply seek orders to carry out maintenance and repairs listed in the reports of Christopher Wood without further identification.
9. Finally on 13 September 2024, the Applicants served a Scott Schedule identifying 26 alleged common property defects to Villas 7, 8 and 9, to which the OC has responded in its submissions.

1. The Applicants allege the OC has failed to properly maintain common property pavers and pathways. They allege excessive grime and moss has accumulated on the pavers at the entrance path to Villa 11 and that there are a number of loose pavers on that path. As a result, two invitees slipped or fell sustaining injuries.
2. The OC says that the pavers and pathways uniquely service the individual lot to which they are immediately adjacent. For Villas 1-24, the pavers are common property but for Villas 25-36, the corresponding pavers are lot property.
3. The OC says that for the 20 year history of SP63429, the pavers have been maintained by the owner of the lot adjacent to them irrespective of whether they form lot or common property. They are otherwise washed on a three year cycle. No other lot owners have objected to this approach.
4. This protocol was confirmed in communications to the Second Applicant and a special resolution was passed at the 2023 EGM on 13 November 2023 that, pursuant to s.106(3) of the SSMA, the OC would not maintain the front entryway pavers for Villas 1-24 and that they would be replaced with garden mulch or crushed stone if they were reported as unsafe.
5. The OC considers that that resolution resolved this issue on or about the date of the resolution.

1. The OC acknowledges that over an expended period of time, the First Applicant has complained about the lack of cleaning of external walls together with the build-up of green mould.
2. The OC has taken the view that individual lot owners will clean the external walls by means of pressure cleaning once every two to three years and that the OC will also incorporate cleaning as part of the cyclical painting process of external walls which occurs approximately every 10 years.
3. The OC gave evidence of Ms Fuscaldo that the Applicants' Villas 7, 8 and 9 were painted at the time of construction (2000-2002), were repainted in 2009-10 by Coral Coatings and again in 2022-23 by Hayes Brothers Painting.

1. The Applicants claim the OC has failed to property maintain the common property gardens including those located between the villas. The First Applicant's claim in this respect raised five issues:

(1) Emails between the Applicants and the OC as far back as 2018 maintaining the gardens around their villas were not being properly maintained;

(2) Whether the OC was entitled to abandon, or refuse to maintain, a centralised irrigation system in favour of individual irrigation systems which shifted the cost of watering common property gardens to individual lot owners;

(3) Complaints by Mr Owen, a lot owner, about garden maintenance by his neighbour;

(4) Emails between the Second Applicant and the OC in 2019 concerning gardens around Villa 9 and By-law 17; and

(5) Asserting that the gardens are not to the standard of [address] annexing a 2019 landscaping assessment report by Scott Taylor of Terrain Consultants.

1. Of course, the state of gardens is a subjective matter. They can also vary with the season, weather and degree of maintenance. Mr Owen requested the OC to rejuvenate and maintain the common property garden to the east of his Villa 15. At a strata committee meeting on 20 February 2018, the request failed because it did not have the neighbours' consent and went beyond the authority given to individual owners under the then Garden Policy.
2. By-law 17.1 originally set the standard for the appearance of the schemes building and common property "to a high standard comparable to and compatible with the [address]".
3. Pursuant to By-law 25, the adequacy or otherwise garden maintenance is now required to be assessed by whether it is being carried out in accordance with the programs budget which is presented and approved at the OC AGM.
4. Mr Taylor commented on a report of Terrain Consultants prepared in 2023. Terrain Consultants was the landscape architect originally involved in the creation of both [address] sort and the Pacific Villas by their developer, Thakral Holdings Limited, in the late 1990's. The purpose of the Taylor report was to ascertain whether the OC in the interim period have compromised the design intents and character of the Landscape Development Design and Documentation as originally planned.
5. Mr Taylor did not consult with any of the OC's gardeners, garden coordinators or secretary or strata manager. Rather, he attended on 6 April 2023 and noted:

(1) A lack of rejuvenation and re-plantings an introduction of species a poor association;

(2) Bare areas in the majority of existing garden;

(3) The precis gated entry has plant associations that are random, sparse, nonsensical and poor in form and density, colour and interest;

(4) Owners have individualised gardens including by produced plantings of species of poor associations eg Villa 12's cacti garden and Villa 14's blue gravel space within intermittent small scrub plantings;

(5) Pruning of topiary and trees has removed screening and created poor forms and structures.

1. Mr Taylor attached 182 photos which were not cross-referenced to his report and some of which appeared to be from an earlier time.
2. The OC retained an expert report of Richard Elliott from an inspection on 21 November 2023. Mr Elliott had regard to and was briefed with the Garden Budget and Planning for FY2023-4; and the General Garden Framework Procedure adopted as part of By-law 25.
3. Mr Elliott concluded in his report that:

(1) Gardening, plant care, lawns, weed management and pest management activities were all being properly undertaken;

(2) The gardens had a tidy appearance;

(3) New plant species were harmonious and maintained overall visual continuity;

(4) There was sufficient soil and mulch cover;

(5) Photos taken during his inspection were labelled to identify the location they depicted and suggested the gardens were being maintained to a high standard.

1. The Applicants alleged the OC has failed to properly undertake termite control to common property areas.
2. The issue here appears to be that although the OC conducts annual termite inspections, the First Applicant complains that it has ignored the recommendation of six monthly inspections. There is no evidence that this has resulted in overside or termite infestations accordingly.

1. The Applicants allege the OC has failed to maintain the gutters and downpipes across the common property. Specific allegations of rusting gutters and downpipes were made in relation to Villa 7 and 8 in the amended application, and Villa 7-9 in the Scott Schedule.
2. There is limited evidence in support of this contention. An email from Mrs Owen (Villa 15) in April 2019 claimed Villa 15's gutters needed to be cleared as they were overflowing and thus an inherent rise to damage to her property. Mrs Owen made this observation again in March 2020. There does not appear to be more recent evidence of overflowing gutters alleged to be caused by lack of clearing.
3. The OC that the gutters are cleared annually using a high-powered vacuum to remove debris and that gutters are cleared on a 12 month cycle for villas located away from the tree line and on a six to nine month cycle for villas located near the tree zones.
4. Mr Killen addressed this issue, observing that the OC was carrying out annual gutter cleaning and referring to specific invoices in the period 2021-2023. He observed that Villas 1-18 have a small box gutter electing from the junction of the laundry and garage roofs which are designed to discharge into the courtyard areas. Mr Wood considered that corroding gutters downpipes and fascias would ultimately require replacement but would still perform adequately even with a corroded or rundown appearance. The OC submits that any failure to replace superficially corroded gutters, downpipes or fascias is not a breach of its statutory obligation and maintain common property.

1. The OC provided detailed information about its maintenance and replacement programs which are presented to lot owners at each AGM. In particular, the OC noted that:

(1) The budgets contain reviews of the past year's maintenance activities;

(2) Reports on prior year expenditure and budgeted expenditure for the next year on common property maintenance and replacement comes about both those part of the Administrative Fund Budget and Works Fund Budget including detailed information for plant capital works projects and garden maintenance works;

(3) There also detailed information circulated about the major planned maintenance cycle for Villas 1-24 involving maintenance replacement of roof flashing, parapet wall cappings, gutters and fascias (especially those north facing) soffits, roof tiles and balcony timber slats.

1. The OC's capital works fund model contains detailed information about past and projected future costs including in 2021-2024, a significant component of detailed information and budgeting for the V1-24 maintenance cycle.
2. Between 2021 and 2023, the OC undertook major maintenance cycle for Villas 1-24 at an estimated cost of $1.359m as at 2023. The OC also plans to undertake the 22 year major maintenance cycle for Villas 25-36 in 2026-2027 at an estimated cost in the FY24 10 year capital works plan of $390,127.00.
3. These are in addition to the irregular and on-demand requirements of repairs and maintenance of a large common property such as Pacific Villas.
4. In their submissions, the OC maintain that the allegations of failure to maintain common property and dysfunctional management raised by the Applicants are "matters of ancient history, trivial, not properly an aspect of the management of the scheme ... or examples of decisions made by the majority of owners with which the Applicants happen to disagree".
5. It was clear both in the affidavit evidence of Ms Fuscaldo for the OC and in her cross-examination that the Applicants represented a vocal minority whereas approximately 80% of the lot owners seemed satisfied with the OC's efforts in respect of the above matters on their behalf. In fairness, the Applicants' villas appear to be afforded a lesser level of priority in respect of maintenance issues - see instances of water ingress and their application for a common property rights by-law to extend the carport of Villa 8 below.
6. The OC went to some trouble to obtain statements of evidence from approximately 80% of the lot owners to the effect that they are generally content with the OC's strata management. Many of these lot owners attended the Tribunal hearings in Coffs Harbour on 19-21 June 2024 in apparent support of the OC.
7. All of these matters, and the list of claims above which are generally counterbalanced by evidence from the OC, suggest that generally the management of the OC is not dysfunctional and that it operates in the best interests of the lot owners.
8. There may be two exception to this. The Tribunal is concerned with the OC's ongoing attempts to push down or delegate cost in respect of matters which are the duty of the OC to maintain and repair to individual lot owners in what appear to be costs saving measures. The evidence suggests this occurs in respect of some areas of garden maintenance, watering of gardens, maintenance of pavers and cleaning of the exterior walls of the common property.
9. Secondly, the content of Ms Fuscaldo's affidavit and her tone in cross-examination was, at times, dismissive of the Applicants and their concerns. Ms Fuscaldo appeared at times to consider the Applicants' ongoing concerns as an unnecessary intrusion to the otherwise peaceful management of SP 63429.
10. The Tribunal reminds the OC's strata committee that the functions of the OC are to be carried out for the benefit of each and every owner of lots in the strata scheme. It is not permissible, consistent with the provisions of s. 9 of the Act for the owners corporation to exclude any one or more lot owners from the services which it is required to provide or to discriminate against any one or more lot owners: Soares v The Owners - Strata Plan No. 14593 [2019] NSWCATAP 35 at [43].
11. The Tribunal ordered on 21 June 2018 in Davis v The Owners Corporation SP63429 [2018] NSW CATCD 27 that obligation to maintain and repair common property can only be transferred to lot owners in circumstances where the OC makes a by-law which gives to a lot owner either a right of exclusive use and enjoyment of all or part of the common property or special privileges in respect of the whole or part of the common property. A condition of such a by-law and grant could be to impose on the relevant lot owner for the maintenance and upkeep of the common property concerned.
12. But that decision made it clear there is nothing in the SSMA that permits an owners corporation to impose on a lot owner the obligation to maintain and repair common property without giving the relevant lot owner exclusive use or special privileges over the common property concerned.
13. That does not appear to be done in this instance. Rather, there is or has been a transference or shift of the duty and obligation to maintain and repair (and therefore cost) to the lot owners.
14. The OC needs to be careful that it does not overstep the previous decision of the Tribunal in this respect.
15. As stated above, the steps for appointment of a compulsory strata managing agent under s.237(3) is a two-step process. First, one of paragraphs 237(3)(a)-(b) needs to be satisfied. Secondly, the Tribunal retains an overall discretion in respect of the appointment.
16. In this instance, an either in respect of s.237(3)(b) or (c) an argument can be made that the OC has failed to comply with a requirement imposed upon it by an order made of the Tribunal dated 21 June 2018 in its constant efforts to cost shift or transfer the duty to maintain and repair in respect of at least some items to lot owners. Alternatively, this could be viewed as a breach of s.237(3)(c) in that the OC has failed to perform one or more of its duties.
17. Notwithstanding this, the Tribunal considers that in the exercise of its discretion, and in the general standards of maintenance and governance which appear to be shared by the greater majority of its lot owners, it is not in the best interests of the OC for the Tribunal to appoint a compulsory strata managing agent which would deny the lot owners of the democratic entitlement to determine their own destiny within the strata scheme.
18. For these reasons, the Tribunal declines to make the first order sought by the Applicants in their application and to appoint a compulsory strata managing agent to SP63429.

1. In the alternative however the Tribunal does consider based upon the parties' expert evidence that work orders should be made to attend to some of the concerns that the Applicants have about items of repairs and maintenance to which the OC has failed to attend to in a timely manner. These items which relate to Villas 7, 8 and 9 owned by the Applicants, are listed in the Joint Scott Schedule of the Respective experts Mr Chris Wood (for the Applicants) and Mr Greg Killen for the OC.
2. Following the three day hearing at Coffs Harbour on 19-21 June 2024, directions were made by the Tribunal in respect of expert evidence relating to any issues or defects in Villas 7, 8 and 9 owned by the Applicants.
3. The Applicants' engineering expert was Mr Chris Wood of O'Meara Wood & Associates Pty Ltd, consulting engineers, of Coffs Harbour. Mr Wood had provided expert reports on various issues and defects in Villas 7, 8 and 9 in:

(1) A report dated 1 June 2023;

(2) A second report dated 8 March 2024;

(3) A third report dated 17 June 2024.

1. The Respondent's expert, Mr Greg Killen, consulting engineers, provided a report dated 14 December 2023 following a site inspection on 4 December 2022.
2. At the adjournment on 21 June 2024, the Tribunal made directions in respect of expert evidence which can be summarised as follows:

(1) The Applicants' expert, Mr Wood, was to prepare a draft Scott Schedule to provide to the Respondent's solicitors based upon the "approximately 20 defects" listed in his current report, by Friday 16 August 2024;

(2) The two experts were to attend a conclave at Pacific Villas, Coffs Harbour, to review the draft Scott Schedule by 16 September 2024;

(3) Mr Killen would prepare a marked up copy of the Scott Schedule to provide to his solicitors and the Applicants solicitors reflecting the extend of their respective agreements and disagreements;

(4) The proceedings were listed for a further day in Sydney (15 November 2024) for an expert conclave to be held to consider the expert opinions on the agreed lists of defects and issues;

(5) Although there was a minor slippage in that timetable, that is of no consequence. The Applicants' solicitors filed in the Tribunal a copy of the Scott Schedule on or about 13 September 2024. That Scott Schedule contained 26 items, issues or defects on which the experts opined. At the further hearing on 15 November 2024, there was a conclave of both engineering experts, Mr Wood and Mr Killen, upon which the Tribunal relies to make its determination.

(6) The Applicants sought work orders for remediation, repair or maintenance in respect of the 26 items contained in the Scott Schedule. The Respondent submitted that no order should be made in respect of the 26 items. It is left therefore to the Tribunal to deal with each of the items and to determine whether, and if so, what order should be made.

#1 and #2 - Villas 7 and 9, Bedroom 1, sliding door

1. The Applicants submitted that water ingress through the main sliding doors in bedroom 1 of Villas 7 and 9 had been reported since January 2018 and had resulted from storm events in September 2019, February and December 2020, and April and October 2021, and November 2023.
2. The Applicants submitted that since the high rating doors were installed in Villa 8 in November 2017, there had been no water penetration issues whereas during the same time period, there were water penetration issues in relation to the similar door frames on Villas 7 and 9. Both experts referred to Australian Standard AS2047 which related to water pressure rather than frequency of water penetration. The experts agreed that the sliding door in Villa 8 had a performance of 600Pa and the unsatisfactory performance of the sliding doors in Villas 7 and 9 had unsatisfactory performance of 300Pa.
3. While the Respondent makes submissions in respect of the evidence relating to water ingress, and the state of the sliding doors in Villas 7 and 9, the Tribunal accepts on the balance of probabilities that this issue should be resolved by the Respondent installing 600Pa doors in Villas 7 and 9 consistent with the sliding door installed in Villa 8 in 2017.

#3 - Villa 7, Bedroom 1 and hallway timber floorboards

#4 - Villa 7, Bedroom 1 skirting boards and wall lining adjacent to eastern window

1. Both in the Scott Schedule and in the Tribunal's notes of the conclave on 15 November 2024, the experts agreed there is water damage in this area and the only dispute between them was how it should be treated.
2. The Respondent submits that there is no lay evidence concerning this defect, it was first raised in Mr Wood's supplementary report dated XX June 2024 which did not explain the source of water ingress nor other possible causes such as the eastern window being left open.
3. Notwithstanding this, the Tribunal is satisfied on the balance of probabilities that water ingress has occurred through the window frame which has resulted in the swelling and breakdown of the fibres of the MDF timber skirting board and the flaking of paint and peeling of silicone joint between the wall lining and the window frame - see Scott Schedule.
4. For these reasons, the Tribunal orders that at Villa 7, Bedroom 1, the skirting boards and wall lining adjacent to the eastern window are to be repaired within three months in accordance with the scope of works proposed by Mr Wood in Exhibit K, and maintained in good order thereafter.

#5 and #6 - Villas 7 and 9, Bedroom 1, sliding door

1. The issue here is that the rollers of the sliding door have seized and the sliding door panels are either difficult to operate or do not open at all. In Item 1 above, the Tribunal has already ordered for the sliding doors to be replaced. In this instance, the Tribunal considers that no further order or recommended work is required.

#7, #8 and #9 - Villas 7, 8 and 9 - Gutters, Fascias and Downpipes

1. The evidence of corrosion adduced by the Applicants was that there was superficial corrosion in two places on the northern side of each of Villas 7 and 9 (but not 8) which was of aesthetic concern.
2. Ms Fuscaldo gave evidence of a planned maintenance program and that gutters, fascias and downpipes were replaced during planned maintenance cycles and, because of the Respondent's seaside location, there was provision for the ad hoc replacement of any particular piece of powder coated guttering or downpipe that reached the end of its life between planned maintenance cycles.
3. In these circumstances, and having regard to the superficial corrosion of only part of the gutters, fascias and downpipes of Villas 7, 8 and 9, the Tribunal does not consider it reasonable or necessary for the entirety of those items to be replaced. The Tribunal considers it sufficient for this to be dealt with by the Respondent in the course of its ordinary planned maintenance work. The Tribunal declines to make any order in respect of these items.

#10 and #11 - Villas 7 and 9, Bedroom 1, Balcony structural steel support beams and brackets

1. Similar to Items #7, #8 and #9, any corrosion appears to be of a surface nature and not structural. Again, this is to be expected in seaside locations. For the reasons outlined in Item #7, #8 and #9 above, the Tribunal declines to make an order in circumstances where planned and regular maintenance programs by the Respondent would accommodate any future structural defects if they were to occur.

1. The experts seem to agree that this is a deficiency of paintwork and not a structural issue, and that the paintwork can be patched, and that patching is sufficient for present purposes.
2. The Tribunal orders that the Villa 7 garage west brickwork wall paintworks are to be patched and repaired within 12 months in accordance with Mr Wood's scope of works in the joint expert report (Exhibit K) and the paintwork maintained in good order thereafter.

1. The issue which was raised in Mr Wood's supplementary report for the first time states that the Villa 7 garage door "squeals" during operation. Mr Killen was of the view that the door is not too noisy and is functional.
2. Although the Respondent in its written submissions claims that this issue is "trivial" and should be rejected, the Tribunal considers the item should be attended to both as a matter of maintenance and to prevent the need for further or greater expenditure.
3. The Tribunal orders that the Villa 7 garage panel lift door should be serviced by a qualified garage door service contractor within three months.

#14 - Retaining and dwarf wall between Villa 7 and 8 driveways

1. The wall paint is failing as it is peeling and bubbling, and is no longer in a good and serviceable condition. This is notwithstanding that the wall was recently painted and has quickly deteriorated with bubbling and peeling of the paint causing it to be in a poor condition.
2. As for Item 12, the Tribunal considers that the retaining and dwarf wall between Villas 8 and 7 are to be repaired within 12 months in accordance with Mr Wood's scope of works in the joint expert report (Exhibit K).

1. The Applicants submit that excessive grime and moss growth has accumulated on the pavers at the entrance path to Villa 7 as well as there being loose pavers.
2. The OC attempts to minimise this but Photograph 12 from p.14 of the 17 June 2024 report of Chris Wood confirms that at least little cleaning or maintenance has been undertaken on these pavers.
3. As well as being a maintenance issue, the Applicants submit that it is a safety issue in respect of both the looseness and slipperiness of the pavers.
4. The Tribunal agrees with the Applicants' submission and orders that the common property pavers on the entrance path to Villa 7 should be cleaned, and any loose pavers repaired, within three months.

1. The issue here is that water has apparently penetrated under the doorframe and into the soffit or ceiling space underneath causing damage to the deck floor space soffit lining, paintwork and electrical fittings.
2. This issue appears to have arisen with the replacement of the Villa 8, Bedroom 1, sliding door. There was a live issue at the hearing as to whether any water ingress arises from a defective doorframe itself, or from its installation of a waterproof membrane surrounding it. The new doorframe was installed by the OC in 2017.
3. In respect of this item, the Tribunal orders that in relation to Villa 8, Bedroom 1, sliding door, that within three months the waterproofing is to be replaced by the OC so that it is fully integrated (lapped) onto the existing waterproof member, in accordance with the scope of works proposed by Mr Wood in Exhibit K.

1. At the conclave, both experts agreed that there were signs of moisture damage in the crack below the window (swelling of the cracked edges) indicating that the damage had been caused by a previous water leak.
2. The Applicants allege that the OC has failed to repair and maintain the wall lining which was damaged by water ingress following a previous leak in the roof.
3. Mr Killen's evidence was that there were no signs of historic water presence, and that the crack would be classified in AS2870 as a fine crack that does not need repair and may occasionally occur in buildings with compliant footings.
4. The OC submits that as a result, it is not required pursuant to s.106 of the SSMA to repair this crack. The Tribunal rejects this submission. The Tribunal orders that in relation to the Villa 8, Bedroom 1, Western Wall, that the patch and paint scope of works proposed by Mr Wood in Exhibit K should include this item and be undertaken within three months.

1. The Applicants allege water ingress has caused damaged to the ceiling lining and mould growth. This item was not part of the original application and was first raised in Mr Wood's supplementary report.
2. Mr Killen has identified the cause of the water penetration as the membrane immediately under the tiles above the bathroom skylight as being complete around the skylight with water penetration only occurring when wind is strong enough to drive water under the tiles.
3. Although at paragraph 228 of the RWS, the OC voluntarily will undertake these works without the necessity of an order, for uniformity the Tribunal considers it should make an order in the following terms. In relation to Villa 8, Roof over Bedroom 2, the damage to the ceiling lining and mould growth is to be repaired in accordance with the scope of works proposed by Mr Wood in Exhibit K within three months.

#19 and #20 - Villas 7 and 9, Bedroom 1, decking boards and joists

1. The decking boards in Villa 7, Bedroom 1 are Modwood boards which have apparently reached the end of their lifespan. There is substantial splitting, raised edges and excess deflections on some boards which present a safety hazard, as well as not being in good and serviceable condition.
2. The Respondent comments that the only tripping hazard arises from discontinuous decking which only applies to Villa 7 (and not Villa 9) because there is no discontinuous decking on Villa 9. Secondly, neither expert appears to identify issues with the decking joists either in their report or the joint expert report. The complaint and issue appears to relate to decking boards only.
3. The Tribunal accepts the Respondent's qualifications on this issue and therefore orders that the decking boards only of Villas 7 and 9, Bedroom 1, are to be repaired within 12 months in accordance with the scope of works proposed by Mr Wood in Exhibit K.

1. The Applicants allege there has been damage to the ceiling lining and cornices in the Villa 9 garage including moisture makes, mould growth and water ingress during heavy rainfall events.
2. Mr Wood identified the issue in his first report and Mr Killen agreed the likely cause was a roof leak. On the supplementary inspection, Mr Wood identified the likely causes a 10mm gap between the parapet wall of the fascia which has allowed initial overflowing of the garage gutter, with which Mr Killen agrees.
3. Although the OC has said it will undertake the repairs voluntarily, for good order, the Tribunal considers having resisted this issue until the hearing, that it should form part of the orders made by the Tribunal.
4. Accordingly, the Tribunal orders that in respect of Villa 9, Northern Fascia, is to be repaired within 12 months in accordance with the scope of works proposed by Mr Wood in Exhibit K.

#22 - Villa 9, Garage Northern access door and window

1. This issue relates to water penetration which is causing pooling in the north eastern corner of the garage of Villa 9 which presents a slipping safety hazard.
2. Although originally resisted, the Respondent accepts the opinion of Mr Killen and agrees this item. Again, for good order, the Tribunal considers that it should form part of the orders of the Tribunal and so orders that Villa 9, Garage Northern access door and window is to be repaired within three months in accordance with the scope of works prepared by Mr Wood in Exhibit K.

#23 and #24 - Villas 7 and 9, Bedroom 1, Deck glass balustrade

1. The issue here is that the gaskets that hold the glass infill panels into the aluminium frame of the balustrades have deteriorated and become loose or dislodged. This is a safety hazard as it is possible the glass infill panels could fall out if not held in place.
2. The Respondent seeks to qualify any order that the Tribunal might make by:

(1) Confining it to replacement of dislodged gaskets being the relevant defect agreed by the experts rather than make a nonspecific order for repair of the glass balustrades generally; and

(2) Not include an order that they be maintained in good order thereafter.

1. The Tribunal accepts the OC's qualification in respect of the first specific issue and more generally in respect of all the items in respect of the second issue.
2. The Tribunal orders that the gaskets that hold the glass infill panels into the aluminium frame of the balustrades on Villas 7 and 9, Bedroom 1, Decks, are to be repaired or made serviceable within three months.

#25 and #26 - Villas 7 and 9, Bedroom 1, Deck glass balustrade

1. This issue relates to the same item as #23 but relates to the glass infill panels which are held in place by the aluminium frame of the balustrade. Some of these glass infill panels have started to delaminate which impacts on their structural capacity. It is also a safety hazard.
2. Both experts in the conclave discussed different methods of testing. Both expressed concern about safety.
3. In their closing submissions, the Applicants modified the order sought in respect of this item from replacement to testing to ascertain whether replacement was warranted. This is a reasonable concession.
4. The Tribunal orders that Villas 7 and 9, Bedroom 1, Deck glass balustrades are to be tested within six months by a contractor experienced in testing degrees of delamination in order to assess whether there is sufficient delamination to warrant replacement and are to be replaced if testing identifies that there is. Any replacement works are to be undertaken in accordance with the scope of works proposed by Mr Wood in Exhibit K and the balustrades are to be maintained in good order thereafter.
5. This results in the following Works Table from the Tribunal's consideration of these matters which is to be undertaken by the OC within the time referenced and within the scope of works proposed by Mr Wood in Exhibit K.

Respondent to install 600Pa doors in Villas 7 and 9 within 6 months.

Villa 7, Bedroom 1 skirting boards and wall lining adjacent to eastern window

Respondent to replace sliding door as per Item 1 above. No further order is required.

Respondent to include in ordinary planned maintenance work.

Villas 7 and 9, Bedroom 1, Balcony structural steel support beams and brackets

Respondent to include in ordinary planned maintenance work.

Respondent to have door serviced by a qualified garage door service contractor within 3 months.

Retaining and dwarf wall between Villa 7 and 8 driveways

Respondent to clean common property pavers and repair any loose pavers within 3 months.

Respondent to replace waterproofing so that it is fully integrated onto the existing waterproof membrane within 3 months.

Respondent to repair damage to ceiling lining and mould growth within 3 months.

Villas 7 and 9, Bedroom 1, decking boards and joists

Respondent to repair decking boards only (not joists) within 6 months.

Respondent to repair or make serviceable the gaskets that hold the glass infill panels into the aluminium frame of the balustrades within 3 months.

Respondent to have the deck glass tested within 3 months by a contractor experienced in testing degrees of delamination in order to assess whether there is sufficient delamination to warrant replacement and are to be replaced if testing identifies that there is and the balustrades are to be maintained in good order thereafter.

Damages of $21,915.09 pursuant to s.106 of the SSMA

1. The Applicants seek an order pursuant to ss. 106 and 232 of the SSMA that the OC pay them damages of $21,915.09.
2. There does not appear to be any dispute between the parties as to the facts giving rise to this claim.
3. On 11 February 2020 a major storm event passed over SP63429. The ceiling of Villa 8 above the entrance hallway collapsed causing the ground floor of the villa to be flooded and damaging the kitchen and cupboards in the lounge room.
4. The damaged property was common property pursuant to special by-law 46 which granted the Second Applicant exclusive use and special privilege in respect of the common property to carry out those works.
5. Special by-law 46 also provided that the owners of Lot 18 are responsible for the proper maintenance of those works and that the OC will not be responsible for the maintenance thereof.
6. The Second Applicant engaged contractors to carry out repairs and submitted a claim directly to CHU, the OC's insurers, in the sum of $70,565.97. Th evidence of the parties suggests that of this sum:

(1) The Second Applicant incurred $52,081.90 for kitchen repairs by Infracraft Detailed Joinery;

(2) The Second Applicant incurred $6,050.00 in legal expenses; and

(3) There was a $10,000.00 deductible or excess on the OC's CHU insurance policy which applied to this claim.

1. The Second Applicant retained a solicitor to act for her in relation to the insurance claim, which was ultimately settled in April 2022 by CHU making a payment of $48,650.00 to the OC which it passed on to the Second Applicant. The Second Applicant now seeks her shortfall or gap of $21,905.09 to be paid by the OC.
2. The OC submits that it has fulfilled its duty to the Second Applicant by allowing her to submit a claim under the OC's insurance policy and in passing on 100% of the funds paid to it by CHU in respect of the claim. The deductible is an uninsured layer for which the OC effectively self-insured. And the Second Applicant's legal expenses were incurred by her voluntarily and in order to assist her in submitting the claim. They form no part of the insurance claim.
3. The Second Applicant in her submissions claims that the total expense ($70,565.97) was 'incurred in mitigation of loss caused by the failure of the OC to take responsibility for the extreme water ingress following the storm event'.
4. In the Amended Application, the Second Applicant appears to rely upon two bases for this claim:

(1) First, pursuant to s.106(5) of the SSMA and in breach of the OC's duty to maintain the common property and keep it in a state of good and serviceable repair; and

(2) Secondly, in breach of the OC's duty pursuant to s.160 of the SSMA to insure and keep insured the whole of the building.

1. In respect of both these causes of action however there is insufficient specificity or particularisation by the Second Applicant as to how her claim is put and why it should succeed. The Tribunal rejects this aspect of the Second Applicant's claim on the basis that:

(1) The terms of special by-law 46 appear to relieve the OC of any liability for this event, at least under s.106 of the SSMA, and place it with the Lot 18;

(2) At least some of the sums sought to be recoverable by the Second Applicant were not recoverable under the CHU insurance policy such as the deductible and legal expenses; and

(3) It's unclear exactly how the CHU insurance policy failed to comply with s.160 of the SSMA and, even if it did, how that gives rise to a damages claim by the Second Applicant against the OC: see Coscuez International Pty Ltd v The Owners - Strata Plan No. 46433 [2022] NSWCATAP 147 at [134].

1. The Second Applicant seeks an order pursuant to s.149 of the SSMA that the by-law proposed as special by-law in Motion 7 of the Notice of EGM dated 23 November 2021, and as set out in Attachment 8 to the Notice be prescribed as a change to the by-laws of SP64329.
2. The common property rights by-law seeks to extend and enclose the carport and garage doors of Villa 7 on to common property. On 18 September 2021 the Second Applicant sent the OC a request for a special by-law to grant her the right to carry out certain 'Works'. The Works were described in correspondence to enclose the carport and extend both the carport and the garage doors towards the street in accordance with special by-law 53. Additionally the current entry gate is to be replaced with an entry door and parapet to match Villa 8.
3. The Second Applicant submits that:

(1) An almost identical proposal was submitted by the owner of Villa 6, the plans for which were drafted by the same architect, and which was submitted to the 23 November 2021 EGM;

(2) It was passed by the OC with only 2% of unit entitlements voting against it whereas the Second Applicant's similar application at the same meeting had 72% of unit entitlements voting against it.

1. The ostensible reason proffered by the OC for refusal of the Second Applicant's by-law was that:

(1) First, she did not work collaboratively with the strata committee to formulate a special by-law consistent with the procedures and model by-law of the OC;

(2) Secondly, the Second Applicant's proposed by-law did not contain a clear and comprehensive point-by-point description of the proposed works in one attachment, and plans and diagrams in a separate attachment;

(3) Thirdly, the OC sought an Annual Fee of $45.00 payable by the Second Applicant to acknowledge that she is being granted a right or privilege of value; and

(4) Fourthly, the owners of Villa 6 co-operated with the strata committee in preparing a by-law in accordance with the OC's documentation recommendations, including a detailed description of the proposed works in a separate attachment and agreed to pay the Annual fee of $45.00.

1. The Second Applicant in her submissions shed more light on the OC's refusal which appeared to relate to matters of form rather than substance, including:

(1) The descriptions for the works to be performed in both Villa 6 and 7 were noted on the architect's plans in almost identical terms;

(2) Any matters of substance were only minor or immaterial;

(3) No annual fee was charged for four previous carport special by-laws namely for Villas 3, 4, 5 and 8. The special by-law 18 which approved an enclosed carport for Villa 4 contained the only description for the works in the diagram (and not in a separate document);

(4) Only three witnesses provided evidence to support the OC's contention that the refusal of special by-law was reasonable. They were:

(a) Ms Maria Lindsay in a statement dated 1 October 2023 gives her reason as non-compliance with matters of form;

(b) Ms Fuscaldo and Ms Lindsay complain about the lack of any indemnity provided by the Second Applicant, however this is included in clause 4(a); and

(c) Ms Marion Barclay in a statement dated 9 November 2023 at [14] stated that '... owners have every right to deny the request given the hostile behaviour of Ms Davis and her continual disputes related to special privileges granted ...' This statement is indicative if the ill-will between the Applicants and the other lot owners.

1. The OC has previously had by-law 59 set aside. This by-law purported to charge an annual fee to an owner granted exclusive use or special privileges.
2. The Tribunal finds that in breach of s.149(2) of the SSMA the OC has unreasonably refused consent to the Second Applicant's common property rights by-law. The Tribunal orders that such by-law be made and that it be operative from the date of these orders.

1. The Applicants seek orders pursuant to s.50 of the SSMA declaring invalid 10 by-laws - see Order 6 of the amended strata application. Pursuant to Order 8 of the amended strata application, the Applicants also seek orders pursuant to s.24 of the SSMA declaring the invalid four special resolutions passed at an EGM of the OC on 13 November 2023, being special resolutions making four of the by-laws.
2. At p.103, paragraph 425 of the Respondent's Written Submissions dated 13 December 2024, the Respondent conceded that four of the by-laws namely 86, 87, 88 and 89 should be declared invalid and that the Respondent also accepted that by-law 34 is inconsistent with the SSMA, in particular within the meaning of s.136(2), and thus is of no force or effect.
3. In paragraph 426 however the Respondent confirms that it presses the remaining five by-laws, namely 11, 15, 17, 25 and 65, and the four resulting special resolutions as valid.
4. Before dealing with each by-law, the Tribunal will briefly consider the relevant law in respect of by-laws. There are three sections of the SSMA relevant to by-laws. They are, ss139, 150 and 136. Those sections relevantly state:

"(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.

(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law."

"(1) By-law cannot be unjust

A by-law must not be harsh, unconscionable or oppressive.

Note : Any such by-law may be invalidated by the Tribunal (see section 150).

(2) By-law cannot prevent dealing relating to lot

No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.

...

"(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive."

1. By-law 11 requires owners and occupiers to keep clean all exterior glass windows and doors on the boundaries of their lots, other than glass they cannot access safely.
2. The Applicants allege by-law 11 is invalid because it passes the responsibility and cost of cleaning windows and doors onto lot owners, whereas that obligation falls on the OC under its duty to maintain and repair common property pursuant to s.106 of the SSMA.
3. The OC has three responses to this:

(1) First, cleaning of outside building surfaces such as windows and doors is not encompassed in the duty of an owners corporation to "maintain and keep in a state of good and serviceable repair" the common property of strata scheme within the meaning of that term in s.106(1) of the SSMA. Unclean windows and doors produce the same performance and functional efficiency as clean windows and doors - they continue to act as barriers between inside and outside and for a means of egress and ingress out of, and into, the lot. In this way, there is no inconsistency between by-law 11 and s.106 of the SSMA;

(2) By-law 11 is an original by-law as it was not made by the OC, the Tribunal's jurisdiction under s.150 to declare invalid a by-law that an owners corporation did not have the power to make is not enlightened;

(3) The by-law is not on any reasonable analysis harsh, unconscionable or oppressive within the meaning of s.150(1) of the SSMA. No other owners have complained about the by-law according to Ms Fuscaldo's evidence and the Applicants have given no evidence about the prejudice they suffer by complying with the by-law.

1. In respect of the first submission, the Applicants submit that for external walls to be kept "in a state of good and serviceable repair", they must be cleaned and for an item of common property to be serviceable, or be it not in a state of good repair, does not fully answer the statutory requirement of s.106(1) of the SSMA.
2. In respect of the second submission, the Applicants submit that in Franklin v The Owners Strata Plan No. 87497 [2022] NSW CATCD 210 an original by-law 25(1) in respect of cooking in a lot was invalidated by the Tribunal.
3. In respect of the third submission, the harsh and oppressive conduct which the Applicants complained of is the shifting of cost from the OC to lot owners unlawfully and in breach of the principles referred to above in Davis v Owners Corporation SP63429 [2018] NSW CATCD 27 including the citation of Owners Corporation SP32033; Patrick and Valerie Mullins [2015] NSW CATCD 23.
4. The Tribunal accepts the Applicants submissions in respect of this by-law and declares by-law 11 invalid.

1. By-law 15 was adopted by the OC by special resolution at an EGM on 13 November 2023 (Motion 10). It deals with the management and storage of waste bins by owners of lots in the scheme. In particular, the OC may give permission for an owner or adjoining owners to construct a waste bin enclosure on common property adjacent to their lot subject to the provisions in Appendix A of by-law 15.
2. Appendix A sets out detailed requirements for the construction of a Waste Bin Enclosure, the process for applying for approval, necessary conditions of approval including that the owners of the requesting lot or lots from time to time are responsible for its maintenance, and the process for giving approval.
3. Under Appendix A:

(1) Applications that do not comply with a substantial portion of the necessary conditions may not be approved;

(2) Applications that are substantially compliant with the conditions may be approved by the strata committee, subject to the right of the neighbouring lots to challenge the decision at the next general meeting of the OC; and

(3) Applications with more than minor variations from the construction guidelines may be approved by ordinary resolution of the OC.

1. The Respondent notes that by-law 15 was originally adopted by a special resolution on 24 May 2013 and that it has never been the subject of complaint until the amended strata application was served on or about 13 June 2024 by the Applicants.
2. The primary reason the Applicants allege that by-law 15 should be declared invalid is because it allows for approval of structures on common property by the strata committee or by ordinary resolution of the OC which is not permitted by the SSMA. Pursuant to s.108 of the SSMA, such approval must be given by special resolution. The Applicants also allege by-law 15 does not provide for a specific authorisation of any particular action as required by s.108 of the SSMA.
3. The Respondent contends that a general allowance for lot owners to build waste enclosures on common property "specifically authorises the taking of the particular action proposed". However the specific authorisation under by-law 15 is given by the strata committee, not the special resolution. The Applicants note the difference between these and insists upon statutory compliance with a special resolution for each waste enclosure sought by lot owners.
4. The Tribunal considers that by-law 15 in its current form seeks to avoid the need for a special resolution pursuant to s.108 of the SSMA in respect of each waste enclosure that is constructed by a lot owner on common property, and is therefore invalid.

1. By-law 17 deals with the appearance of lots and of the common property. By-law 17.2.2 prohibits an owner of a lot, without the prior written approval of the OC, from erecting any antennae or other device on common property, providing the consent may not be unreasonably withheld if the aesthetic appearance of the building viewed from any public road is not adversely affected.
2. The Applicants contend that by-law 17 should be declared invalid because it allows for additions, alterations and modifications to common property buildings without a special resolution under s.108 of the SSMA. The Applicants also allege by-law 17 does not provide for a specific authorisation of any particular action as required by s.108 of the SSMA.
3. The Respondent submits:

(1) By-law 17.2.2 does not authorise any action to be taken. On the contrary, it prohibits an owner from taking the prescribed action. While by-law 17.2.2 contemplates the OC might give consent, and stipulates criteria for giving that consent, that cannot override the statutory requirement that consent by special resolution of the OC is necessary if the relevant proposed action is the addition, alteration or erection of a structure on common property for the purposes of its improvements or enhancements, within the meaning of s.108(1) of the SSMA.

(2) In that sense, by-law 17 is not the same as the blanket approvals in by-law 15 and by-law 65.

(3) Further, by-law 17 is an original by-law not made by the OC and the Respondent submits that the Tribunal does not have jurisdiction under s.150 to declare invalid a by-law that an owners corporation did not have power to make.

(4) The Tribunal agrees with the Respondent's submission that upholds the by-law on the basis that it does not obviate the need for approval by a special resolution pursuant to s.108 of the SSMA.

1. By-law 25 was adopted by the OC by a special resolution at its EGM on 13 November 2023 (Motion 6). It deals with management and maintenance of common property gardens by the strata committee and by individual owners. In particular, it permits owners to carry out minor gardening activities in the common property gardens directly adjacent to their villas.
2. The Applicants allege by-law 25 should be declared invalid because it allows for additions, alterations and modifications to common property gardens by lot owners without a special resolution of the OC pursuant to s.108 of the SSMA.
3. The history of garden and maintenance at the OC shows the strata committee adopted a General Garden Maintenance Framework at a meeting on 26 September 2016 to guide the OC in its role of keeping the common property gardens in good order and condition. The strata committee has applied the principles of the General Garden Maintenance Framework as varied from time to time up until the adoption of the 2023 framework. This framework enables lot owners to carry out common property gardening work without a special resolution. It does not mandate that work to lot owners. For this reason, the Tribunal does not consider this by-law shifts the OC's gardening costs onto lot owners to maintain and repair common property. The Tribunal considers this by-law valid.

1. The Respondent accepts that by-law 34 is inconsistent with the SSMA within the meaning of s.136(2) and therefore is of no force or effect. It also imposes a charge not authorised by Schedule 1, Clause 4 of the SSMA. For these reasons, it should be declared to be invalid although, as the Respondent notes, such a declaration is a purposeless exercise given the concession that the by-law is of no force or effect in any event.

1. The Applicants claim that by-law 65 allows owners to renovate bathrooms and any other wet areas, including removing tiles, waterproofing and altering common property plumbing without first obtaining a special resolution under s.108 of the SSMA.
2. The Applicants also allege by-law 65 does not provide for a specific authorisation of any particular action, as required by s.108 of the SSMA. The Respondent rejects this because first:

(1) By-law 65 was made by a special resolution at the AGM held on 11 April 2017 which "specifically authorises the taking of the particular action proposed". The Respondent submits that this is sufficient compliance with s.108(s) of the SSMA since it authorises lot owners to take the action authorised in by-law 65;

(2) The action authorised in by-law 65 is for "each owner to conduct the works", in essence being bathroom renovations. The Respondent says the action authorised by by-law 65 is adequate in its specificity of authorisation and particularity as to the action proposed;

(3) The Applicants dispute this saying a general permission is not a specific authorisation for the purposes of s.108 of the SSMA and for these reasons, by-law 65 is invalid. The work authorised under this by-law, bathroom renovations, will not be a minor renovation within s.110 of the SSMA by reasons of s.110(7)(b) and (d). This by-law is beyond the power of the OC to make as it is inconsistent with s.108 of the SSMA;

(4) The Tribunal agrees with the Applicants that the Respondent's submissions should be rejected and that by-law 65 should be declared invalid.

1. While the OC accepts that these four by-laws should be declared invalid, it seeks to uphold the underlying special resolutions of the OC as special resolutions.
2. The reasons for this are unclear but the Applicants state that each of the special resolutions is a matter of "infelicitous drafting" by failure to observe the strict requirements of s.106(3) of the SSMA and the passing of these special resolutions is an attempt by the Respondent to overcome claims brought by the Applicants in these proceedings.
3. At the EGM on 13 November 2023, the OC made the following special resolutions pursuant to s.106(3) of the SSMA:

(1) Motion 4 - Not to replace, maintain or clean the front entryway pavers which uniquely service lots associated with Villas 1-24;

(2) Motion 5 - Not to replace the centralised irrigation system;

(3) Motion 7 - Not to replace the intercom system at the front entry gate;

(4) Motion 9 - Not to replace the pool heaters that were removed by the owners corporation with approval by general motion in 2006.

1. As the Respondent submits, in respect of s.24(3) of the SSMA, the Tribunal may only make an order invalidating any resolution of the OC if the Tribunal considers that the provisions of Part 10 (other than Division 6 or 7) of the SSDA have not been complied with in relation to the meeting.
2. The Tribunal is unaware of any evidence of this and there does not appear to have any such evidence before it. For these reasons, the Tribunal declines to invalidate these resolutions although noting that the resolutions appear to have been put in response to claims of breach of s.106 of the SSMA by the OC in these proceedings.

1. As a result of the above findings, the Tribunal proposes to make the following orders:

(1) An order pursuant to either section 232 or section 229 or section 241 of the SSMA that, the Respondent is to, at its own cost, using suitably qualified and where required licensed contractors, carry out the maintenance and repairs to the common property listed in the Works Table at paragraph 180 of these Reasons for Decision, such work to be undertaken in a proper and workmanlike manner in accordance with all applicable codes and standards so as to achieve compliance with s 106 of the SSMA, and such work to be carried out as prescribed for each item in the Works Table, and within the scope of works for that item proposed by Mr Chris Wood in Exhibit K.

(2) An order pursuant to section 149 of the SSMA that the by-law, described as proposed special by-law 83 in motion 7 in the Notice of Extraordinary General Meeting dated 23 November 2021 (the EGM), is prescribed as a change to the by-laws of Strata Plan No. 63429, with the wording that appears in attachment 8 of the Notice of the EGM, and with the proposed special by-law to operate on and from the date of these orders.

(3) An order that the Respondent owners corporation record and register the by-law prescribed pursuant to order 2 in accordance with section 246 of the Act within 28 days of these orders being made.

(4) An order pursuant to section 150 of the SSMA that the following by-laws of Strata Plan 63429 be declared invalid.

(a) By-law 11.

(b) By-law 15.

(c) Special by-law 34.

(d) Special by-law 65.

(e) Special by-law 86.

(f) Special by-law 87.

(g) Special by-law 88.

(h) Special by-law 89.

(5) An order that the Respondent owners corporation record and register the removal of by­laws pursuant to order 4 in accordance with section 246 of the Act within 28 days of these orders being made.

1. In respect of costs, the parties indicated at various stages that they would like to be heard on costs, or at least that any decision on costs should await the outcome of the proceedings.
2. If any party wishes to be heard on costs the Tribunal proposes that be done on the papers and that any costs applicant file and serve their written submissions (no more than 5 pages) within 3 weeks, any costs respondent file and serve their written submissions (no more than 5 pages) within a further 2 weeks and any costs applicant file and serve their written submissions-in-reply (no more than 3 pages) within a further 1 week.
3. Both parties should confirm in their written submissions that they consent, pursuant to s.50(1)(c) of the Civil and Administrative Act 2013 (NSW), to a hearing on costs being dispensed with and agree to the issue of costs being determined on the papers.

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.