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FENG v THE OWNERS – UNITS PLAN NO 840 (Unit Titles) [2026] ACAT 38 | Case summary | Zoe

ACTACAT

FENG v THE OWNERS – UNITS PLAN NO 840 (Unit Titles)

[2026] ACAT 38

ACT Civil and Administrative Tribunal|2026-07-10

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ACT Civil and Administrative Tribunal

Decision date

2026-07-10

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Original judgment source is linked above.

Judgment

Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FENG v THE OWNERS – UNITS PLAN NO 840 (Unit Titles) [2026] ACAT 38 UT 29/2022; XD 580/2022 Catchwords: UNIT TITLES – applicant required to partially pay for a report commissioned in response to an issue the applicant's property was unaffected by – applicant nonetheless benefited from the report – the owners corporation's payment of the report which was ultimately inconsistent with what they intended to commission was within the executive committee's remit and ratified at AGM – where owners corporation paid the relevant unit owner directly for repairs quoted at less than the excess provided by the owners corporation's insurance policy instead of claiming on insurance – section 100A of the Unit Titles (Management) Act 2011 which commenced April 2021 obliged the owners corporation to pay the excess on any claim – payments of for repairs ‘under excess’ made prior to April 2021 were not negligently made CIVIL DISPUTE – mailboxes and the structures containing them are common property which were required to be maintained by the owners corporation – the owners corporation is liable for incorrect advice provided by the strata manager – the respondent was required to reimburse the applicant's filing fee in both applications, who was partly successful in both applications

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48 Unit Titles Act 2001 ss 13, 17 Unit Titles (Management) Act 2011 ss 24, 35, 100, 100A

Cases cited: Blackman v the Owners Units Plan 666 (2007) unreported - ACT Magistrates Court Woolmer & Ors v The Owners – Units Plan 346 [2019] ACAT 95

The proceedings were heard over two days on 20 and 21 February 2023.
The applicant was represented by Ms Karen Feng, and the respondent Owners Corporation by Mr Stephen Rowley and Mr Joseph Ots (respectively the Chair and a member of the Executive Committee).
The applicant relied upon: (a) The two amended applications lodged 29 August 2022 (with attachments including a transcript produced by Ms Feng of the 2020 and 2021 AGMs); (b) A witness statement of Karen Feng (with attachments); (c) Documentary evidence bundle of 21 pages lodged 19 December 2022; (d) Further evidence bundle of 25 pages lodged 19 October 2022; (e) A written summary of claims lodged 15 August 2022; (f) A written submission about the ‘under excess’ payments; (g) A written submissions about the potential ‘overlap’ in proceedings; and (h) Audio of the 2020 AGM (taken by Ms Feng on her phone).
The respondent relied upon a bundle of documents lodged 7 January 2023 containing: (a) A response to the amended application; (b) A timeline of relevant events; (c) Witness statement of Stephen Rowley; (d) Witness Statement of Sara Hogwood; (e) Extract of the 2012 AGM minutes; (f) Documents relating to the 2019, 2020, 2021, and 2022 AGM; (g) Minutes of the Executive Committee meeting on 5 November 2021; (h) Executive Committee Chair note to the Owners Portal about the decision on the roof audit and quote; (i) Email of 26 July 2021 rejecting an insurance claim by Unit 27; (j) Email Chain dated 29 July 2020 re the increase to office bearer liability; (k) Email from the applicant about written report and reply from the EC Chair dated August 2020; (l) Email from the applicant about further issues including office bearers liability dated 6 October 2020; (m) CHU office bearers liability insurance brochure; (n) Executive summary of insurance package taken, dated January 2022; (o) Extract of 2019 sinking fund plan; and (p) Emails relating to letterbox repair dated February 2022.
During the hearing the parties provided further information which was exhibited as follows: (a) A1 – copy of registered Units Plan 840; (b) A2 – photograph of relevant mailboxes for Units Plan 840; (c) A3 – applicant’s email of 20 February 2023 with attached transcripts and audio links; (d) R1 – extended transcript of the AGMs of 2020 and 2021; and (e) R2 – additional information from Lookup Strata Website: Kerin Benson’s answer to question posed about payment of claims for less than the excess.
After the hearing, pursuant to directions, the parties provided the following submissions and evidence.
The applicant lodged: (a) Email of 22 February 2023 accepting information about the $190.30 payment on 3 July 2020; (b) A bundle of documents lodged 8 March 2023 including final submissions, CHU product disclosure statement extracts, emails to the AFP in relation to job numbers for the mailbox damage, and other evidence; and (c) Final submissions in reply lodged 13 April 2023.
The respondent lodged: (a) Email of 22 February 2023 with information about the $190.30 payment on 3 July 2020 for light replacement in Unit 14; (b) Email of 6 March 2023 providing the insurance policy Terms and Conditions and Product Disclosure Statement for 2020; and (c) Final submissions lodged 6 April 2023
There had been prior proceedings between the parties, during which some of the issues raised in these proceedings had been adverted to. Accordingly at the commencement of this hearing the first order of business was to consider the extent of any ‘overlap’ with prior proceedings, and confirm that the issues now raised had not been previously determined.
Both parties reviewed the proceedings, and submitted that there had been no determination by previous Tribunals of the matters now raised. I accepted those submissions.
Accordingly, the hearing proceeded to consider all issues raised by the applicant in their Amended Applications of 29 August 2022. Owners corporation building insurance and office bearers insurance
The applicant raised two issues about insurance taken out by the owners corporation.
The first was the increase to office bearers insurance from a cover amount of up to $1 million to an amount of up to $10 million. This occurred at the 2020 AGM. The applicant was concerned that the arguments put for the increase were spurious, that there was no real basis in terms of a written report from an insurance broker for the increase, and that consequently the applicant has been required to contribute to a higher insurance premium than might otherwise have been the case.
The respondent argued that the question of an increase to the office bearers liability cover was squarely put as Motion 3 on the agenda for the 2020 meeting, and that an examination of the transcript shows that the Chair put the proposal and there were questions from the floor before the vote by which the motion was successful. The increase in cover that year cost an extra $472.98.
The second issue canvassed at the 2021 AGM was the way the motion concerning the owners corporation other insurances had been phrased, and had been referenced in the agenda and on voting slips. The applicant was concerned that the motion did not distinguish between insurance which was required by law, and that which was optional. Nor did it disclose the different costs of the various insurances. The applicant was concerned that the wording of the relevant motion, in the agenda and on the voting forms, which was “to authorize the managing agent to renew and adjust the building insurance in consultation with the executive committee” gave the impression that all of the insurance covers subsequently obtained were mandatory, when this was not the case.
The respondent submitted that many insurance products were ‘bundled’ and for that reason separate costings for different aspects of cover did not always exist. The respondent said that the owners corporation did not take cover which was not mandatory, wherever possible.
Notwithstanding these concerns raised by the applicant’s representative at the 2021 annual general meeting, the motion was successful.
The hearing clarified the parties’ reasoning and created a degree of understanding previously missing. I discussed the potential difficulty of unpicking decisions which had been made and given effect to, following an annual general meeting some years ago. Having talked through the issues with the parties, who further reviewed the audio of the meeting and the documents lodged by each party, the applicant’s representative advised on the second day of the hearing that they did not wish to go further into the office bearers liability or the phrasing of the motion about insurance, particularly given the respondent’s intention to present information differently in the future. Those parts of the application were thus abandoned.
It can be observed that an owners corporation is a microcosm of democracy. Robust, respectful debate and discussion are a sign of a healthy democracy. Often decisions will be made at a general meeting (or by an executive committee) with which one or more owners disagree. In such cases, the aggrieved owner may choose to accept the owners corporation’s decision, or alternatively they may choose to seek that the ACAT review the successful or unsuccessful motion. Currently there is no time limit on the bringing of such an application. This is a matter which the legislature might wish to address, in the interests of all parties to a dispute.

(1) The responsible entity for a units plan must insure and keep insured all buildings on the land for their replacement value from time to time against all of the following risks: (a) fire, lightning, tempest ,earthquake and explosion; (b) riot, civil commotion, strikes and labour disturbances; (c) malicious damage; (d) bursting, leaking and overflowing of boilers, water tanks, water pipes and associated apparatus; (e) impact of aircraft (including parts of, and objects falling from, aircraft) and of road vehicles, horses and cattle; (f) anything prescribed by regulation. (2) The responsible entity must also insure against the costs incidental to the reinstatement or replacement of the insured building, including the cost of removing debris and the fees of architects and other professional advisers. Note If the responsible entity is an owners corporation and a developer is the only member of the owners corporation, the developer must on behalf of the owners corporation take out insurance under s (1), unless exempted under s 101. (3) A regulation may make provision in relation to an insurance policy under this section including for the following: (a) combining the policy with other insurance policies; (b) notification requirements by unit owners in relation to improvements made to units; (c) the proportion of the premium payable for the policy by particular unit owners by way of a general fund contribution; (d) valuation of the insured buildings. (4) For all purposes related to any insurance taken out by it under this section, a responsible entity is taken to have an insurable interest in the buildings on the land to the extent of their replacement value. Note 1 The owners corporation must produce its insurance policies for inspection at the request of an eligible person (see s 118). Note 2 The executive committee of the owners corporation must give certain details about the corporation’s current insurance policies at each annual general meeting (see sch 2, s 2.3). (5) In this section: building management committee—see the Land Titles Act 1925, section 123F (1) (a). responsible entity means— (a) if the units plan is part of a building the subject of a building management statement—the building management committee established under the statement; or (b) in any other case—the owners corporation.

Most of the background facts to this issue were agreed.
As required, the owners corporation had at all relevant times an insurance policy in place to protect the buildings on the units plan from storm damage. When the notorious 2020 hail storm event occurred , many roofs of the units (which are Class B units) were damaged, and a claim was made on the insurance for roof repairs.
The applicant had his own insurance policy for storm damage, and organised his own roof repairs to be undertaken promptly under that policy.
Unfortunately, many of the owners whose roofs were repaired under the owners corporation insurance claim reported that the repairs were inadequate. At the 2020 Annual General Meeting the owners voted to obtain a report (to be prepared by Jones Lyng Group) as to whether the repairs had not been properly undertaken.
The extent to which the roof of Unit 18 was to be included in that report, and following events, are matters of some dispute. The applicant was concerned with having to pay a share of the costs of the report, when it did not concern their own roof. However, the applicant also saw the benefit in having a report which confirmed that their own roof had been competently repaired, and had no lingering issues (in case of any future water ingress).
From the evidence of the representatives, and reviewing the minutes and other documents, I am satisfied that in the end the applicant wished his roof to be part of the Jones Lyng report, and that the strata manager intended that his roof was to be included in it. However, the occupants were to be given advance notice if anybody was to walk on the roof (due to the presence of the large skylight and privacy issues). I am also satisfied that Unit 18 was to some extent included in the roof report, although this was likely by a distant visual inspection.
As though the hail storm and the inadequate repairs were not enough misfortune, the roof report when it arrived was not what the owners corporation had intended to commission. It was not an expert opinion on the adequacy of the repairs previously undertaken. Rather, it was a report of an inspection and opinion as to work to be carried out on the roofs, and quote for the cost of that work. The owners corporation contemplated not paying the invoice for the report ($1914.00) and instructed the strata manager to insist on the commissioned report being provided, at no further cost. However, there was no written brief or quote for the report, and Jones Lyng asserted they had provided the kind of report which had been requested.
In the end, the executive committee at a meeting on 2 November 2021 resolved to pay the outstanding invoice from the general fund. The applicant’s share of that cost was estimated in these proceedings at about $30.00.
In the amended civil dispute application, the applicant asserted they had been unreasonably left out of the roof report and sought a refund of their share of the invoice ($30.00). As I am comfortably satisfied that the applicant’s roof was included in the roof report this claim must fail.
In the amended UTMA application the applicant sought a ruling from the Tribunal as to whether the executive committee had gone outside the bounds of section 35(3)(b) of the UTMA in deciding to pay the invoice for the roof report. Section 35 sets out the functions of the executive committee, and section 35(3) states: (3) The executive committee must exercise its functions— (a) as the corporation directs by resolution at a general meeting; or (b) in the absence of a resolution—as the committee considers appropriate.
The documents lodged by the respondent included at page 110 the post on the owners portal explaining why the roof report had been obtained, the problems with it, the decision to pay for it and the decision not to take any further steps to repair the roofs. The respondent’s representative also explained the reasoning behind the decision to pay the outstanding invoice, rather than have the owners corporation suffer loss of reputation and presumably the threat of enforcement action.
I am satisfied that the action of paying the invoice was within the remit of the executive committee, and I note that the decision was effectively ratified at the following annual general meeting when the financial statements were accepted. Claims for damage to buildings which are less than the insurance excess
The applicant queried in each amended application the approach to be taken by the owners corporation in relation to costs of repairing damage to buildings which was not the subject of an insurance claim.
The applicant had become aware of a practice in the owners corporation whereby the cost of repairs was paid directly to the relevant unit owner instead of being claimed on the owner corporation’s insurance if the cost was less than the excess provided by the insurance policy.
The respondent submitted that the practice of paying to unit owners ‘claims under excess’ had been in place since around 2013, and the approach was supported by the decision in Blackman v the Owners Units Plan 666 1 (Blackman) (2007) Magistrates Court (unreported).
As set out above, Section 100 of the UTMA requires an owners corporation to take out storm damage insurance for all buildings on the land, with no distinction as to Class A or Class B units, or common property. Section 101 makes provision for exemption from this provision by unanimous resolution: the parties advised that no such resolution had been made for this owners corporation
In Blackman the unit owned by the applicant had been damaged by the failure of a water heater in the unit above. The unit owner sought to make a claim for the repairs (which were not urgent) on the owners corporations insurance, but was told he would have to pay the excess on the claim. He brought an application to the Magistrates Court for a determination to resolve the issue. After considering the legislation as it was then worded, the facts, and the terms of the relevant insurance policy, Referee Morris concluded that the owners corporation should pay for the costs of the repairs to be effected by the applicant, and that it was up to the owners corporation whether to make a claim on its insurance or not.

The applicant submitted that a claim for an amount less than the excess is not a ‘claim’ and cannot be made. Whether this argument is successful turns on the terms of the particular contract of insurance.
The respondent provided the Tribunal with a copy of the insurance policy thought to be in place in the relevant years for the purposes of section 100. That policy indicated that the excess is an amount payable by the claimant either at the time of making the claim on the insurance policy, or to be deducted from any amount paid out. In other words, the policy does not define a ‘claim’ as being an amount above the excess, and does not exclude a claim being made for an amount less than the excess. Given these terms, I do not accept the applicant’s submission that a ‘claim’ under the UTMA does not include a claim for an amount less than the excess.
What does this mean for the amended applications? The applicant initially pointed to four ‘under excess’ claims paid prior to April 2021 and sought reimbursement of his share of each payment. One of the four payments was withdrawn after provision of further information by the respondent.
The applicant submitted that the three remaining payments by the owners corporation for repairs ‘under excess’ prior to April 2021 had been unlawfully or negligently made, and that the applicant should be reimbursed their share for each payment. The respondent submitted that the owners corporation was not negligent, as it had been following what was thought to be the law at the time. I accept the submissions of the respondent in this regard.
Further, as discussed with the parties at the hearing, it was at all times open to an owners corporation to decide, in relation to buildings in the units plan, to take a generous approach to repairs of property – even property which was not the responsibility of the owners corporation. Such an approach should be authorised by resolution at a general meeting. The longstanding practice of the owners corporation in this respect, coupled with the approval of financial statements at every annual general meeting, in my view met that requirement.
The situation since the insertion of section 100A is much clearer. Since April 2021, a unit owner whose unit suffers damage which will cost less than the excess to repair may require the owners corporation to make a claim on the insurance for an amount less than the excess, and then pay the amount of the claim up to the excess to the insurer.
A less expensive, quicker and simpler approach, in cases where the claim would clearly be covered by the policy, is for the owners corporation to pay the cost of the repairs directly to the owner. In addition, as submitted by the respondent, by making less claims on the insurance policy the owners corporation would be less likely to suffer an increase in future premiums.
This simpler approach is also consistent with the legislation. The applicant was concerned that it was not permissible to make such payments out of the general fund. However, it is the general fund which provides for insurance premiums and I accept the submissions of the respondent that just as the payment of insurance excesses, mandated by section 100A, must come from the general fund so too should the payment of routine ‘under excess’ claims. A different approach might be taken on the rare occasion where the payments relate to a matter the subject of a special fund or might be appropriately brought within the ambit of a sinking fund.
I note also that because of the imposition of section 100A a matter for future debate in owners corporations will be the amount of the excess to be negotiated by the owners corporation with the insurer at the time of taking out the policy. A cheaper premium might have a higher excess (but lead to the owners corporation paying out more ‘under excess’ claims) or vice versa. Each owners corporation will make its own decision about the point at which a claim would be made on insurance, rather than being paid out by the owners corporation.
The applicant’s claim for damages in relation to payments for repairs ‘under excess’ must be dismissed.

In both applications the applicant raised issues in relation to costs of repairs to their mailbox, and the approach taken to repair of mailboxes generally.
The applicant asserted that in 2012 the unit 18 mailbox fell into disrepair, and the then strata manager advised Ms Feng that the owner of the unit should repair it, as the inside of the mailbox was the property of the unit owner. Ms Feng gave evidence about repairing the mailbox initially in 2012, and then on subsequent occasions in 2018 and 2019 when it was vandalised or otherwise damaged. Ms Feng was unable to provide the job number for her report of the vandalism/damage to the Australian Federal Police, however I accept her evidence that the damage occurred. Ms Feng gave evidence of the costs of the necessary items for repair, and her and her sister’s hours in the sun effecting the repairs.
Later, Ms Feng became aware of the respondent having paid for the repairs of another mailbox in the same structure.
In the civil dispute application the applicant brought a claim in negligence against the owners corporation for incorrect information provided by the strata manager. The applicant sought an order for reimbursement of the loss suffered, quantified as the costs of the materials for repair, and the cost of the labour provided by his two sisters in effecting the repairs. The owners corporation disputed the negligence claim, on the basis that the executive committee was unaware of the advice being given by the strata manager and was not negligent in this respect.
The owners corporation pointed out that the repairs to mailboxes conducted in 2022 was on the basis that they had been vandalised and it was a claim ‘under’ or ‘less than’ excess for repairs to buildings or structures on the land, rather than an acknowledgement that the mailboxes were common property.
However, having now examined the issue, the owners corporation agreed that the two mailbox structures were common property and not the property of individual unit owners.
In the UTMA application the applicant sought a determination as to whether the mailboxes were common property. If the mailboxes were determined to be the property and responsibility of the owners corporation as common property, consequential orders for reimbursement of amounts expended on the incorrect basis were sought.
I am satisfied from the evidence of the parties, the photographs of the mailbox and an examination of the registered units plan that the structure containing the mailbox for Unit 18 and others in the complex is located on the common property. The structure is not itself shown on the registered plan. Nonetheless it would follow by operation of sections 13 and 17 of the Unit Titles Act 2001 that the structure containing the mailboxes, and the mailboxes themselves, are common property.
Under section 24(1) of the UTMA, it is the responsibility of the owners corporation to maintain this common property.
Accordingly, although the cost of repairs by owners of mailboxes of other units might have been reimbursed at the time under the rubric of a claim for damage ‘under excess’, in law the repairs should have been undertaken by the owners corporation, at the owner’s corporations expense, in compliance with the duty to maintain common property. If the total amount of repairs was more than the insurance excess, no doubt the owners corporation would have made a claim on its insurance for the cost of the repairs.
The legal situation remains the same today.
As sought by the applicant in the UTMA application, I determine that the relevant mailboxes in units plan 840, located on the common property, are themselves common property.
In relation to the negligence claim, the issue of whether the mailboxes were themselves common property, or not, required interpretation of the registered plan and the legislation. The answer to this issue is clear, and there is no apparent basis for the interpretation propounded by the strata manager. This is not a matter on which the operation of the law is uncertain and reasonable minds may differ.
The respondent submitted that it should not be held accountable for incorrect advice given by the strata manager, as the owners corporation cannot be expected to be aware of every communication being made. The applicant submitted that the proceedings had been brought against the owners corporation, rather than the strata manager, precisely because the owners corporation through its executive committee was aware of the mailbox issues.
I am satisfied that the owners corporation is liable to the applicant for the actions of its strata manager. The owners corporation had at all times a legal obligation to maintain the common property. The owners corporation failed to do so, and instead through its strata manager required the owner of Unit 18 to effect their own repairs to the common property.
The applicant’s representative gave evidence of the cost of effecting the repairs, and the time taken. The applicant sought compensation in either the amount of cost of a locksmith, or costs of materials and time spent. The respondent submitted that an amount of $50.00 in total was adequate compensation.
From the evidence given, and drawing on my experience of hearing similar claims in residential tenancy applications, am satisfied that the cost of repairs to the mailbox would have been in the range of $50.00 on each occasion (being the cost of materials plus skilled labour). Although the applicant may have spent more than that on materials, and his sisters spent many hours in labour, a person seeking compensation has a duty to mitigate their loss. For that reason, I will order the owners corporation to pay to the applicant the sum of $100.00 for two occasions of repair to the mailbox in 2018 and 2019.

It is accepted that in interpreting the word ‘successful’ it is not necessary for an application to be entirely successful. It is sufficient to enliven the discretionary power provided by section 48(2)(a)(i) that part of the application is successful.
In relation to the relief sought in the civil dispute application on the basis of negligence, the applicant has been successful in relation to the mailbox repairs.
In relation to the relief sought in the application brought under the UTMA, the applicant has been successful specifically in relation to the ownership of the mailbox, and the application has thus been decided in his favour in that part.
The respondent submitted that even if successful on some issues, the Tribunal should not order reimbursement of the filing fee because many of the issues could have been resolved if the applicant had spoken further with the respondent’s strata manager or representatives. Indeed, a significant part of the amended applications relating to office bearers liability insurance and the taking out of insurance was withdrawn after those issues had been talked through.
While there is some force in the respondent’s submission, the background to this matter demonstrates that prior to the proceedings the parties had reached a point of ineffective communication. It is not necessary to go into the details – many of which were before me – as to the causes of the breakdown of the relationship between the parties. It is enough to note that the breakdown in communication had occurred, and a circuit breaker and refresh was necessary. It is exactly for this reason that the ACAT encourages parties to lodge an application where an issue cannot be resolved to the satisfaction of the parties. Where ACAT provides a quick, inexpensive and objective forum for the issue to be discussed, and either agreed or adjudicated, this promotes the restoration of a workable relationship between the owners corporation and its members.
The applicant has been successful in part in each application, and the successful part was not trivial or insignificant. The issues raised by each application were important not just for this owners corporation but for other owners corporations in the ACT. I do not consider it was inappropriate to bring the proceedings, and I will order that the respondent reimburse to the applicant the filing fee for each application.