1. Likewise, vehicle access to the roller-door entrance to the "Image Bullbars" factory on lot 3, and to the three parking spaces allotted to it on the part of the forecourt belonging to lot 3, can be achieved only by entering from the same crossing and then traversing the common property.

1. Access to the factories and parking spaces on lots 1 and 2 can be achieved by entry from different crossings and does not require any traversing of the common property.

1. The plan gives the dimensions of the common property: its length, east to west, is 11.55 metres and its width, north to south, is 6.20 metres. In 2008 the then owners corporation manager, at Mr Kanter's urging, arranged for yellow lines to be painted on the forecourt to delineate the common property and for the words "Keep Clear" to be painted within the lines. The parties do not agree that the painted lines correspond exactly to the boundaries of the common property. For reasons I give below[2] I consider, however, that there is a reasonably close degree of correspondence between the painted lines and the boundaries.

1. Most of the respondents have a connection to lot 3, and it is those respondents with whom Mr Kanter is primarily in dispute over the use of the common property driveway, as well as over other matters.

1. The first respondent, Milroy Investments Australia Pty Ltd, is the owner of lot 3. It is the trustee of a family trust.

1. The sixth respondent, Vantwest Pty Ltd, is the tenant of and occupier of lot 3. It conducts the business "Image Bullbars" there.

1. The fourth and third respondents, Milroy Vantwest and Debbie Vantwest, are husband and wife. Milroy Vantwest is a director of both Milroy Investments Australia Pty Ltd and Vantwest Pty Ltd. Debbie Vantwest is a director only of Milroy Investments Pty Ltd. She is an employee of Vantwest Pty Ltd. She is also the chairperson of the owners corporation.

1. As the evidence given during the hearing of the proceeding revealed, both Mr and Mrs Vantwest are involved in the day-to-day management of the business "Image Bullbars" at its factory premises.

1. I refer to all those respondents collectively as "the Vantwests".

1. The second respondent, Tom Singer, is a director of Marutom Nominees Pty Ltd, the owner of lot 2.

1. The fifth respondent, Sam Weerasinghe, is the owner of lot 1.

1. There are no other members of the owners corporation. For all practical purposes, all members of the owners corporation are parties to the proceeding, even though Mr Singer personally, not lot 2's owner Marutom Nominees Pty Ltd, is a party.

1. Vantwest Pty Ltd did not become a respondent until the third day of the hearing, following earlier evidence of Mrs Vantwest that it, not Milroy Investments Australia Pty Ltd, was the occupier of unit 3 and the proprietor of the business "Image Bullbars". I ordered[3] that Vantwest Pty Ltd be joined as a respondent, so that the allegations that Mr Kanter had been making against Milroy Investments Australia Pty Ltd were made also against Vantwest Pty Ltd together or in the alternative.

1. From time to time there have been other respondents to the proceeding. The owners corporation manager, Strata Essentials Australia Pty Ltd, had been a respondent. So had the owners corporation. For reasons that do not presently matter I had dismissed summarily the claims made against the manager. Mr Kanter withdrew a minor monetary claim he had made against the owners corporation. So those two respondents ceased to be parties.[4] For a time "Sam Weerasinghe" and "Samantha Weerasinghe" were named as separate respondents; they are one and the same person, however.[5]

1. Mr Kanter's claims, and the identity of the respondents to them, emerge from two documents. One is Points of Claim that were attached to this initiating application. The other is headed "Points of Claim Pursuant to the Orders made on 22 January 2016 by Senior Member Vassie". On that date I had ordered that he give particulars of the damages he was claiming from each respondent except the manager. I conducted the hearing on the basis that those two documents, read together, contain the claims that he was making against each respondent and specified the orders he was asking the Tribunal to make against each, so that they together were his "Points of Claim".

1. By s128 of the Owners Corporations Act 2006 ("the Act") a lot owner is obliged to comply with rules of the owners corporation. By s137 of the Act, an occupier of a lot is obliged to comply with those rules also.

1. Mr Kanter alleges that the Vantwests are in breach of rules 3.1(1), 3.2 and 5.1 of the model rules. Those rules are:

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

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

(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or

(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or

(c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.

5.1 Behaviour of owners, occupiers and invitees on common property

An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.

1. In summary, the conduct of the Vantwests that Mr Kanter claims is a breach of one or more of those rules is as follows.

• Vehicles belonging to the Vantwests are standing on the common property driveway while being unloaded.

• Vehicles belonging to the Vantwests are being parked on the common property.

• The Vantwests use a forklift vehicle, on common property, to unload vehicles.

• Customers' vehicles are standing in the common property while the Vantwests are unloading them.

• Large trucks belonging to the Vantwests' customers are parked in the street, or stand in the street, opposite the entrance to the driveway and block the entry to or exit from the driveway.

• A semi-trailer has been parked in one of the Vantwests' car spaces but part of the trailer jutted out onto common property.

• A customer of the Vantwests has parked in one of Mr Kanter's car spaces without permission.

1. The Vantwests deny that there is any conduct of theirs which amounts to a breach of any of those rules.

1. Mr Kanter alleges that he has suffered loss and damage as a result of the breaches, because he has had to alter his business practices; he has notified his customers not to attend his premises to take delivery of orders, so that they will not be inconvenienced by obstruction of the driveway; instead he either makes the deliveries to the customers himself or arranges for couriers to collect the goods and deliver them to the customers. All of this, he claims, inconveniences him considerably and affects the profitability of his business. He claims against each of the Vantwests:

1. an order under s166 of the Act which imposes a civil penalty.[6]

1. Mr Kanter also alleges that the Vantwests, Mr Singer and Mr Weerasinghe have not met responsibilities which they have under model rule 6 which, so far as is presently relevant, provides:

(1) The grievance procedure set out in this rule applies to disputes involving a lot owner, manager, or an occupier or the owners corporation.

(2) The party making the complaint must prepare a written statement in the approved form.

(3) If there is a grievance committee of the owners corporation, it must be notified of the dispute by the complainant.

(4) If there is no grievance committee, the owners corporation must be notified of any dispute by the complainant, regardless of whether the owners corporation is an immediate party to the dispute.

(5) The parties to the dispute must meet and discuss the matter in dispute, along with either the grievance committee or the owners corporation, within 14 working days after the dispute comes to the attention of all the parties.

In 2015, before beginning this proceeding, Mr Kanter had made two written complaints, in proper form, about the Vantwests and their use of the common property driveway. In response to the first, all other lot owners told him, via the manager, that they would not attend a meeting to discuss the dispute. There was no response to the second.

1. Mr Kanter has sought an order revoking Debbie Vantwest's appointment as a member of the "disputes resolution committee" of the owners corporation. The Vantwests deny that there is, or ever was, a "disputes resolution committee". In view of that denial, Mr Kanter applied during the hearing for leave to amend his Points of Claim so that he also asked for an order revoking Mrs Vantwest's appointment as chairperson of the owners corporation. I granted that application for amendment.[7]

1. Because of their alleged failure to meet responsibilities under model rule 6, Mr Kanter has sought orders against the Vantwests, against Mr Singer and against Mr Weerasinghe for "a penalty for not following the dispute resolution process".[8]

1. The Points of Claim made allegations against Mr Singer of breaches of the model rules with respect to use of the common property driveway, and sought damages for the alleged breach. I can say at once that I received no evidence whatsoever of any such breach by Mr Singer or by his company Marutom Nominees Pty Ltd.[9]

1. Other claims in the Points of Claim, particularly those about an insurance policy, had fallen away by the time that the proceeding came on for hearing.

1. This proceeding is by no means the first that Mr Kanter has begun at the Tribunal. Two earlier proceedings required a mention. On 1 October 2011, following a three day hearing of a proceeding in which Mr Kanter was applicant and Milroy Investments Australia Pty Ltd was the only respondent, Member (now Deputy President) Nihill made an order that the respondent comply with the rules of the owners corporation and in particular rules 3.2(a), (b) and (c) and rule 5.1. On 30 January 2015, following a six day hearing in October and November 2014, Judge Jenkins, Vice President of VCAT, made an order which found Milroy Investments Australia Pty Ltd guilty of contempt of the Tribunal and fined it $10,000.00. In her reasons for the order her Honour had stated that she was satisfied that Milroy Investments Australia Pty Ltd had, by the actions of its directors and employees, "displayed a contemptuous disregard for the Tribunal order of 1 October 2011".[10]

1. A remarkable feature of those two proceedings is that the Vantwests evidently did not disclose to the Tribunal that Milroy Investments Australia Pty Ltd, although the owner of lot 3, was not the occupier of the lot and the proprietor of the business "Image Bullbars": Vantwest Pty Ltd was. The disclosure was made only in the course of the hearing before me.

1. The reasons for decision of Judge Jenkins given on 30 January 2015 have a relevance in three ways. First, I did not allow Mr Kanter to give evidence in the present proceeding about any alleged breaches of model rules 3 and 5 that had occurred before 30 January 2015; they had already been adjudicated upon. Secondly, those reasons are a yardstick by which one might compare the frequency and the degree of the Vantwests' conduct since 30 January 2015 about which Mr Kanter did give evidence. Thirdly, Judge Jenkins' opinion about what amounted to a breach of rules about "obstruction" was a matter to which the Vantwests' solicitor referred while making a final address.

(a) It began on 29 August 2016. Mr D'Cruz, solicitor, sought leave to appear for Mr Kanter. The Vantwests, Mr Singer and Mr Weerasinghe all were present. (That was the only day on which Mr Weerasinghe was present.) The Vantwests opposed the application for Mr Kanter to be represented by a professional advocate. I allowed the application in part; the leave to be represented by a professional advocate was limited to Mr D'Cruz being entitled to open the applicant's case, to lead evidence in chief from Mr Kanter and to make a final address.

(b) The hearing resumed on 30 August 2016. Mr D'Cruz continued to represent Mr Kanter within the limitations that I had set. The Vantwests were present. Mr Singer and Mr Weerasinghe were not. Mr Kanter completed his evidence in chief, and Mrs Vantwest cross-examined him. Mr D'Cruz closed the applicant's case. Mrs Vantwest began to give evidence, and made the disclosure about Vantwest Pty Ltd being the occupier, as tenant, of lot 3. At the end of her evidence on that day I varied the order I had made about representation so that I allowed Mr D'Cruz to cross-examine Mrs Vantwest on the matter of the identity of the occupier of lot 3 but on no other matter. At the end of that limited cross-examination Mr D'Cruz on Mr Kanter's behalf applied for leave to join Vantwest Pty Ltd as a respondent. I adjourned the hearing so that the Vantwests might obtain legal advice about the application to join Vantwest Pty Ltd.

(c) The hearing resumed on 7 November 2016. Mr D'Cruz continued to represent Mr Kanter. Mr Wilkinson, solicitor, sought leave to appear for the Vantwests. Mr Singer was present. I allowed the application for the Vantwests to be represented by a professional advocate but imposed the same limitations on that leave as I had imposed in relation to Mr D'Cruz. I allowed the application for joinder of Vantwest Pty Ltd, which Mr Wilkinson did not oppose. Mr Wilkinson led some further evidence from Mrs Vantwest about six photographs. After she had given that evidence Mr Kanter made an application for adjournment, which I granted.

(d) The hearing resumed and concluded on 20 December 2016. Mr Kanter was self-represented on that day. Mr Wilkinson continued to represent the Vantwests. Mr Singer was present. Mr Kanter cross-examined Mrs Vantwest. Mr Wilkinson closed the Vantwests' case, and made a final address. Mr Kanter began to make a final address but it soon became apparent that he was wanting to give some further evidence. I allowed him to do so and allowed Mrs Vantwest to give further evidence too about a matter in Mr Kanter's evidence that had not been put to her. Mr Kanter concluded his final address. I reserved my decision.

1. At the end of the third day of the hearing, 7 November 2016, I had informed the parties of my intention to go to the site and inspect it in their absence. No party raised any objection. So on 11 December 2016 I did inspect the site and observed the forecourt and the common property driveway. I was able to conclude that there was a reasonably close degree of correspondence between painted lines and the boundaries of the common property as shown on the plan of subdivision.

1. Only two witnesses gave oral evidence: Mr Kanter and Mrs Vantwest. There were numerous exhibits, some of which were individual photographs or books of documents which included photographs. Not all of the photographs in the books were put into evidence, however. In particular, on the last day of the hearing, when Mr Wilkinson said that he wanted to lead evidence from Mrs Vantwest

about a book of more than 80 photographs, I allowed him to lead evidence from her about six of them only. None of those photographs had been put to Mr Kanter before he concluded his evidence. Had I allowed evidence about all of those photographs there would have been a risk of evidence given on three previous days having to be revisited and of the proceeding being further protracted.

1. Mr Singer and Mr Weerasinghe did not take any active part in the hearing, although, as I have indicated, Mr Singer was present on three of the four days and Mr Weerasinghe was present on one. As will appear below, there was no need for them to have taken any active part in the hearing.

1. In the course of his final address Mr Wilkinson submitted that model rule 3.2 did not appear to be well drafted, and that previous decisions of the Tribunal about the meaning of "obstruct" in rule 3.1(1) and in rule 3.2(b) were not entirely consistent. Both of those submissions were legitimate.

1. Difficulties of construction of rule 3.2 arise from grammatical defects and from ambiguity. I again set out the relevant parts of rule 3:

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

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

(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or

(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or

(c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.

The infinitives "to be parked or left" appear in sub-paragraph (a), and sub-paragraph (a) makes grammatical sense, but there are no infinitives at the start of sub-paragraphs (b) and (c), the result being that those sub-paragraphs do not make grammatical sense. The grammatical defects would be cured if the rule were to be read as if "to be parked or left" appeared before the parenthesis which leads to the sub-paragraphs, instead of within sub-paragraph (a). The ambiguity comes from the phrase "in any place" in sub-paragraph (c); it might mean "in any place at all" (whether on common property or not), or it might mean "in any place situated on common property". As an owners corporation's power to regulate parking or leaving of motor vehicles exists only in relation to the land in the subdivision, not to any land outside it, the second meaning must be the correct one.

1. Rules of an owners corporation should be read fairly, not narrowly or pedantically, and their import should be derived from the language they employ and so that they have business efficacy.[11]

1. Accordingly I consider that effect should be given to rule 3.2 as if it reads as follows:

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

(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or

(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or

(c) in any place situated on common property other than a parking area situated on common property specified for that purpose by the owners corporation.

1. When the allegation is that one lot owner or occupier is parking or leaving a motor vehicle in such a way that the motor vehicle obstructs another lot owner or occupier, in breach of rule 3.1(1) or of rule 3.2(b), the Tribunal has generally approached the issue by requiring the person making the allegation to prove that there has been actual obstruction, not a potential or theoretical obstruction. As a then Senior Member had put it:[12]

There must be actual obstruction. There is no theoretical obstruction: a rule is not breached if a lot owner thinks, "I'm not intending to go out today but if I was I would be inconvenienced".

In my view that approach is clearly correct with respect to an alleged breach of rule 3.1(1), but is not necessarily correct with respect to an alleged breach of rule 3.2(b).

(a) Rule 3.1(1)

1. The obstruction that rule 3.1(1) prohibits is an obstruction of a person's "lawful use and enjoyment of the common property". Denial of a person's lawful use and enjoyment cannot occur unless the person is attempting to use and enjoy common property but is prevented from doing so: is actually being obstructed.

1. Rule 3.1(1) has a wider application than to motor vehicles. Sometimes a breach of the rule may be proved even though no person has given evidence of actually being denied use and enjoyment of common property. For example, if there is evidence that a thoroughfare in a shopping centre, which every shop proprietor has to walk through to enter the shop, is constantly blocked by merchandise or other objects belonging to one shop proprietor, the Tribunal would be able to draw a clear inference from those circumstances that there was actual obstruction of use and enjoyment of common property. However, when the alleged obstruction comes from the use of a motor vehicle on common property, it is difficult to see how a breach of rule 3.1(1) could be proved without the applicant or someone else giving evidence of a particular occasion when attempted use and enjoyment was actually obstructed: when the person could say "I wanted to go out today but I couldn't because a motor vehicle on the common property was obstructing me".

1. Speaking of rule 3.1(1), Judge Jenkins in the reasons for decision in the contempt proceeding stated:[13]

The above Rule is broadly expressed to the extent that it is not limited to use of a motor vehicle. Accordingly, in the context of the parties, it will encompass any conduct by an owner or occupier of either Unit 3 or 4, which does or is intended to obstruct the lawful use and enjoyment of the common property by the owner or occupier of the other Unit, including their customers.

Read in isolation, that paragraph would tend to suggest that an intended obstruction, not necessarily an actual obstruction, of lawful use and enjoyment was a breach of the rule. However, almost immediately after that paragraph her Honour went on to say:[14]

First, the Applicant relied upon photographic evidence of a number of instances where the Vantwests (including a son) have stood on the common property, at a point adjoining the red line marked on their sign, thus obstructing either the Applicant or one of his customers from utilising the whole of the common property for the purpose of parking their vehicle or exiting from the Applicant's premises.

In each case demonstrated, I am satisfied, beyond reasonable doubt, that the behaviour of the Vantwests, on behalf of the Respondent, was voluntary and intentional and carried with it the clear objective of obstructing the Applicant or his customer from the lawful use and enjoyment of the common property.

There were findings, therefore, of actual obstruction of Mr Kanter's use and enjoyment, not a mere intention to obstruct. The proceeding being a prosecution for contempt, it was of course necessary for her Honour to determine whether the obstruction was intentional.

1. So what might be thought to be an inconsistency of approach to the application of rule 3.1(1) is more apparent than real.

(b) Rule 3.2: "park or leave"

1. What rule 3.2 states that a lot owner or occupier must not do is to "park or leave" a vehicle, or to permit a vehicle "to be parked or left", on common property in any of the ways described in sub-paragraphs (a), (b) and (c), except in an emergency.

1. In the rule, "park" and "leave" are expressed as alternatives so must have different meanings: that is to say, the phrase "park or left" should be read disjunctively. Each describes the outcome of the driver having brought the vehicle to a standstill and having alighted from it.[15] The difference in meaning emerges in my opinion from an examination of rule 3.2 as a whole, construed in the way in which in paragraph 34 above I have considered it should be construed. Each sub-paragraph of rule 3.2 is concerned with a particular part of a subdivision's common property.

(a) Sub-paragraph (a) is concerned with "parking spaces...allocated for other lots". For the purposes of the sub-paragraph a vehicle is "parked" if it is stationed within a "parking space". The prohibition is upon parking in a space allocated for someone else.

(b) Sub-paragraph (b) is concerned with all common property, whether there are allocated car spaces, or a specified parking area, or not. For the purposes of the sub-paragraph a vehicle is "parked" if it is stationed within an allocated car space or a specified parking area - for that is what stationary vehicles become in that space or that area - but is "left" if it is stationed on common property not earmarked for parking. The prohibition is upon parking or leaving the vehicle so as to obstruct a driveway, pathway, entrance or exit to a lot.

(c) Sub-paragraph (c) is concerned with so much of the common property which is "a parking area specified for that purpose" and with so much of it which is not. For the purposes of the sub-paragraph a vehicle is "parked" if it is stationed within the specified parking area, but "left" if it is stationed anywhere else. The prohibition is upon leaving a vehicle anywhere on common property other than by parking it in the specified parking area.

(d) In short, the proper construction of rule 3.2 in my opinion, is that one "parks" a vehicle by stationing it in an allocated parking space or in a parking area specified for that purpose, but "leaves" a vehicle by stationing it anywhere else on the common property.

1. In this proceeding the dispute about common property and motor vehicles brings into focus sub-paragraphs (b) and (c) only. Parking spaces marked out on the concrete forecourt are marked on individual lots, not on common property. So the dispute in question includes whether the Vantwests have "left" vehicles, or had permitted vehicles to be "left", in a way that is prohibited by rule 3.2(b) or (c).

(c) Rule 3.2(b)

1. Rule 3.2(b) raises two other issues of construction: how does a lot owner or occupier -

(i) "leave" a vehicle, or permit it to be left, on common property, and

(ii) "obstruct" a driveway, pathway, entrance or exit to a lot?

1. Mr Wilkinson submitted that to "leave" a motor vehicle on common property means to leave it unattended. He drew my attention to the Road Safety Rules 2009 which prohibit a driver from stopping in a "no parking" area, or across a driveway, unless the driver "does not leave the vehicle unattended" (amongst other exceptions), and provide that "a driver leaves a vehicle unattended if the driver leaves the vehicle so the driver is over 3 metres from the closest point of

the vehicle.[16] The assistance which the wording of one set of statutory rules can give to the construction of quite different set of statutory rules is limited.[17] Nevertheless, I accept that if a driver is close to the stationary vehicle, and is ready and willing to move it immediately upon request, it may be that the driver has not "left" the vehicle within the meaning of rule 3.2. Whether in any instance the driver has "left" the vehicle will become a question of fact.

1. Mr Wilkinson also submitted that Mr Kanter had not proved any breach of rule 3.2(b) because he had not given evidence of any occasion on which he had actually been obstructed from using the common property driveway.

1. Rule 3.2(b), unlike rule 3.1(1), is not about prohibiting an obstruction of a person's use and enjoyment of common property. It is about the physical characteristics of the common property and its surrounds, and is about prohibition of a physical obstruction. The rule prohibits obstruction of a driveway, pathway, entrance or exit to a lot. If a motor vehicle is left, or is permitted to be left, on common property in such a way that it obstructs a driveway, etc, there may be a breach of the rule even if during the period that the obstruction remains no-one is actually being prevented from using what has been obstructed.

1. So any omission on Mr Kanter's part to give evidence of an occasion on which he had actually been obstructed by a motor vehicle left on common property might be fatal to an allegation of a breach of rule 3.1(1) but not fatal to an allegation of a breach of rule 3.2(b).

1. No issue about the expression "obstruct" arises under rule 3.2(c). The issue in this proceeding is only whether, in breach of rule 3.2(c), the Vantwests have left motor vehicles on the common property driveway or have permitted them to be left there.

1. There is no conflict between sub-paragraphs (b) and (c). Both deal with motor vehicles left on common property, but rule 3.2(b) can apply even if the vehicle which obstructs a driveway, pathway, entrance or exit to a lot is within a parking space on common property, whereas rule 3.2(c) cannot.

1. Rule 5 is headed "Behaviour of persons". Rule 5.1 is headed similarly but deals with the behaviour of "guests of the owner or occupier" and requires the owner or occupier to ensure that the behaviour of guests does not interfere with the peaceful enjoyment of any other person entitled to use the common property. It is of a much more general application than is rule 3.2. It is capable of covering what a guest of an owner or occupier does when parking or leaving a motor vehicle. However, in accordance with the maxim of statutory construction that a general provision gives way to another provision which deals with the same subject matter more specifically,[18] I consider that rule 5.1 gives way to rule 3.2 when the alleged breach is the behaviour of a guest when parking or leaving a motor vehicle on common property. In other words, if that behaviour has not amounted to a breach of rule 3.2 it will not be a breach of rule 5.1 either. Moreover, even if the behaviour is capable of being caught by rule 5.1, it would be necessary to establish that a person's peaceful enjoyment of common property was actually, not just potentially, being interfered with.

1. Before I deal with whether Mr Kanter has established any breaches of rule 3, about vehicles on common property, I make two preliminary observations.

1. The first is that the nature of the two businesses - Mr Kanter's being the sale of labels and stamps, and the Vantwests' being the manufacture and repair of bullbars - means that entry onto the common property driveway of vehicles, sometimes heavy vehicles, and the need to load or unload those vehicles, will occur much more frequently for the purposes of the Vantwests' business than for the purposes of Mr Kanter's business. While Mr Kanter and the Vantwests have just as much legal right as each other to use and enjoy the common property, and just as much right as each other to complain about breaches of rule 3, I consider that the Vantwests ought to be allowed some leeway in that regard. Mr Kanter has been over-zealous in his documentation of alleged infractions of the rule. At the same time, the Vantwests should not be permitted to ride roughshod over Mr Kanter's rights with respect to the common property and Mr Kanter is entitled to object to, and to seek a remedy in this proceeding about, any significant breaches of the rule.

1. The second preliminary observation is that, when the findings that Judge Jenkins made in the contempt proceeding are compared to the evidence that I have received in this proceeding, the result of the comparison is that, on any view, there has been a considerable improvement in the Vantwests' observance of rule 3 and in their conduct towards Mr Kanter. On the final day of the hearing Mr Kanter told me that since May 2016, when a Worksafe inspector visited the site (because of an incident that is irrelevant to this proceeding), things had improved between the Vantwests and him, and he hoped that things would remain as they are now.

1. I have already mentioned that I received a large body of photographic evidence from both Mr Kanter and the Vantwests. Most showed a digitally recorded date. Most of the photographs on which Mr Kanter relied are in one of the books of documents tendered and received as an exhibit: Exhibit B. The photographs are behind tab 66 in that book. Immediately before the photographs, but still behind tab 66, is a table of photographs in numerical and chronological order. In the table Mr Kanter has included a note about what he says the various photographs reveal and the period of time that each vehicle in a photograph remained on the common property or near it. Mr Kanter expanded upon the document when giving evidence. Unless I say otherwise, all of Mr Kanter's photographs to which I make specific reference below are within Exhibit B tab 66.

1. The Vantwests tendered, and I received in evidence, two series of photographs. The first series[19] was comprised of stills from footage taken by a security system camera. They were of poor quality and I did not derive assistance from them, although I have taken into account Mrs Vantwest's evidence about what she said they showed. The second series[20] was comprised of the six photographs that I received in evidence on the day that Mr Wilkinson began to appear for the Vantwests.

1. Having viewed all of the photographs, and having considered the evidence of Mr Kanter and of Mrs Vantwest about them, I have concluded that Mr Kanter has proved four, but only four, instances of a breach of rule 3.

1. The Elgas truck: breach (1). Mrs Vantwest gave the following evidence, which I accept. Until about the middle of 2016 a truck belonging to a business called Elgas delivered gas cylinders to the Vantwests' factory. The deliveries occurred at approximately monthly intervals. The Vantwests would unload the full cylinders and load empty cylinders. The truck driver remained in the truck during the loading and unloading. When the parking bays for lot 3 were full the driver would stand the truck on the common property driveway, because Elgas had instructed the driver that he was not permitted to park in the street while making deliveries. In mid-2016 her business changed suppliers, and the new supplier's truck does not stand on common property when its driver is making deliveries.

1. Mr Kanter's photographs taken on 3 separate days - 4 June 2015, 11 February 2016 and 20 February 2016[21] - show the Elgas truck standing on common property. Referring to her own photograph of the occasion on 4 June 2015,[22] Ms Vantwest said that the truck had remained on the driveway for 6 minutes. Mr Kanter timed the presence of the truck on 11 February 2016 at 16 minutes. There was no evidence of the length of time that on 20 February 2016 the truck remained on the common property, but I infer that the process of unloading and loading would have taken several minutes, as it did on the other occasions.
2. I find that on those three days there was a breach of rule 3.2(b), because the Vantwests permitted a motor vehicle to be left on common property so as to obstruct a driveway (the truck in question being so large as to present a considerable obstruction to the driveway, in my view), and a breach of rule 3.2(c) because the Vantwests permitted a motor vehicle to be left in a place situated on common property other than a parking place specified for that purpose by the owners corporation. I make those findings despite the evidence that the driver remained in the Elgas vehicle during the process of unloading and loading. I doubt that the moving of the truck to a different position during that process was feasible. Had the Vantwests changed suppliers earlier than they did, this breach may have been less frequent.

1. The seriousness of the breach is modified by the fact that it has not occurred since mid-2016, and is unlikely to occur in future, when the gas cylinders are being delivered.

1. Breach (2). Mr Kanter's photograph taken on 13 April 2015[23] shows a large truck stationary on the driveway when, it seems, it was being unloaded. Although Mr Kanter's table of photographs does not specify a period during which the truck remained there, Mr Kanter gave oral evidence, and I accept, that it remained there for 6 minutes. I find that that constituted a breach of rule 3.2(b) and of rule 3.2(c), for the same reasons as I gave in relation to the Elgas truck, breach (1).

1. Breach (3). Mr Kanter's photographs taken on 9 June 2015[24] show a large semi-trailer stationary on the driveway. Some of them show a nearby forklift vehicle so I infer that the semi-trailer was there to be unloaded. Mr Kanter said that it remained there for 10 minutes. Ms Vantwest said "less than five minutes". As unloading was involved I think that Mr Kanter's timing is probably more accurate. I find that on this occasion there was a breach of rule 3.2(b) and of rule 3.2(c), for the same reasons as I gave for breach (1).

1. Breach (4). Mr Kanter's photograph taken on 22 July 2015[25] shows a large truck stationary on the common property driveway. He gave evidence that it was there for 9 minutes. I find that on that day there was a breach of rule 3.2(b) and of rule 3.2(c), for the same reasons as I gave for breach (1).

1. I do not propose to set out in detail my conclusions about other photographs or other alleged breaches of the rules. I make the following general comments:

(a) No breach of rule 3.1(1) has been proved because there was no evidence of any occasion on which Mr Kanter was actually obstructed from using or enjoying common property on an occasion when he wanted to use and enjoy it.

(b) Mr Kanter gave evidence of occasions, one of which he documented by a photograph, of visitors to the Vantwests' business having parked in one of the bays marked for Mr Kanter's use. Those occasions were not a breach of rule 3.2(a) because those parking bays are not situated on common property; they are on Mr Kanter's lot.

(c) Numerous photographs show occasions when a truck has parked in the street and blocked the driveway. Whatever may be said about that conduct, it was not a breach of any part of rule 3 because the truck was not parked or left on common property.

(d) There were photographs of a semi-trailer having been parked in one of lot 3's parking bays but with its rear section jutting out past the edge of the bay. I was not satisfied that it jutted so far as to impinge on common property.

(e) Whenever Mr Kanter's table of photographs did not record the period of time for which the vehicle in the photograph remained on common property and Mr Kanter did not give other evidence of the period, I have not been satisfied that he has proved that the vehicle had been "left", or permitted to be left, on common property.

(f) The parking of vehicles right next to the edge of the common property driveway, with their doors opening out over the edge and with the vehicles being unloaded by persons standing on the common property as some of Mr Kanter's photographs show, may have been provocative but was not a breach of rule 3, no vehicle having been left on common property.

(g) No use of common property dealt with in the evidence, and which did not constitute a breach of any part of rule 3, has been proved to be a breach of rule 5.1 because there has been no evidence of likely unreasonable interference with peaceful use and enjoyment.

1. Although so far in these reasons I have referred to the Vantwests as if they were a single legal entity, of course they are not. It is necessary to determine which of the respondents breached rule 3 in the instances where I have decided there was a breach.

1. Milroy Investments Australia Pty Ltd, as owner of lot 3, and Vantwest Pty Ltd, as occupier of lot 3, both have a statutory duty to comply with the rules of the owners corporation and both breach that duty if they breach any of those rules. The natural persons, the human agencies, by whom both those two corporate entities act are Mr and Mrs Vantwest. For what I assume are reasons connected with taxation laws (for a family trust is involved) Vantwest Pty Ltd as tenant operates the business conducted on lot 3. On one view of the matter, since the conduct which I have found to be breaches of rule 3 occurred in the course of operation of the business, the person in breach was the tenant Vantwest Pty Ltd, not the owner Milroy Investments Australia Pty Ltd. That is too pedantic a view, in my opinion. A better view is that when Mr and Mrs Vantwest permit a vehicle to be left on the common property driveway in breach of rule 3 they do so in that capacity as human agencies for both corporate entities and do not distinguish between those two entities when they do it. The justice of that view is demonstrated by how the Vantwests defended the earlier proceedings, including the contempt proceeding. The only respondent named in those proceedings was Milroy Investments Australia Pty Ltd. When defending them the Vantwests did not deny that the actions complained of in those proceedings were the actions of Milroy Investments Australia Pty Ltd. Apparently they did not even disclose the existence of Vantwest Pty Ltd during those proceedings.

1. So I conclude that both Milroy Investments Australia Pty Ltd and Vantwest Pty Ltd breached rule 3 in the instances that I have identified and so both breached their statutory duty[26] to act in accordance with that rule.

1. Neither Milroy Vantwest nor Debbie Vantwest was an owner or occupier of lot 3 when those breaches occurred, and so it was not they personally who committed them. The corporate veil is a legitimate defence for them in that regard. They have no personal liability for breach of the rules and so Mr Kanter cannot succeed in his claim for damages against them personally. Only the two corporate entitles are exposed to liability for damages, if any loss or damage to Mr Kanter has been proved.

1. Although in his Points of Claim Mr Kanter alleged that Mr Singer had breached rule 3 and had sought damages from him, there was no evidence of any breach by Mr Singer or by his company Marutom Nominees Pty Ltd. At all events Mr Singer is neither an owner or occupier of a lot; his company Marutom Nominees Pty Ltd is, but that company is not a respondent to the proceeding. The allegation has not been, and could not have been, made out.

1. Breaches of rule 3 by the first respondent Milroy Investments Australia Pty Ltd and by the sixth respondent Vantwest Pty Ltd have been proved. In his Points of Claim Mr Kanter sought damages of $2,000.00 from Milroy Investments Pty Ltd for "the persistent inconvenience, loss of amenity and enjoyment of Factory caused to the applicant and the persistent disregard for the reasonable needs of the applicant in the operation of his business and welfare since the Contempt decision on 30 January 2015". He also sought the imposition of a civil pending upon that company pursuant to s166 of the Act. By virtue of the joinder of Vantwest Pty Ltd as a respondent he has sought those remedies against Vantwest Pty Ltd also or in the alternative.

1. I accept Mr Kanter's evidence, and find, that he has been inconvenienced by breaches of rule 3 in that he has notified his customers not to attend his premises at lot 4 to take delivery of ordered goods, and that he has done that so that his customers are not deterred from doing business with him because they find that the driveway is obstructed and so cannot park in lot 4's parking bays; instead, he either makes deliveries to the customers himself, or arranges for couriers to collect the goods from him and deliver them to the customers, or posts them to the customers. Although there has been no evidence of actual economic loss to Mr Kanter as a consequence of the breaches of rule 3, I accept that the goodwill of his business has been put at risk to some extent.

1. Mr Kanter also claimed that he had spent time and money on preparing documentation for the hearing of this proceeding. He cannot recover compensation for that. It is not a loss that has been caused by any breach of an owners corporation rule; rather, it has been caused by his decision to begin and pursue this proceeding.

1. He is entitled, however, to compensation for the inconvenience that I have found that he has suffered. In determining an owners corporation dispute I may make any order I consider fair, including an order for payment of a sum of money by way of damages,[27] provided that in doing so I am otherwise acting according to law. Awards of damages for inconvenience are permissible in proceedings based upon a nuisance[28] or upon a breach of a landlord's covenant to allow a tenant quiet enjoyment, even when the proceeding is based upon a breach of a statutory duty, as this one is.[29] The compensation must be modest, because from the many instances of alleged breach of rule 3 I have found only four to have been proved. I shall order Milroy Investments Australia Pty Ltd and Vantwest Pty Ltd to pay to Mr Kanter $800.00 as damages for inconvenience caused by a breach of their statutory duty.

1. Imposing a civil penalty upon them would be penalising them twice for the same proved breaches. That would be unfair. I shall not do it.

1. In his Points of Claim Mr Kanter has sought an order that revokes the appointment of Debbie Vantwest as a member of the owners corporation's committee, and a civil penalty under s166 of the Act because, as a member of it "dispute resolution committee", she has failed to comply with rule 6 of the model rules relating to dispute resolution. By virtue of an amendment to the Points of Claim which I allowed during the hearing, he also seeks an order revoking her appointment as chairperson of the owners corporation. Mr Kanter has also sought the imposition of a civil penalty upon Mr Singer and Mr Weerasinghe because of their alleged failure to comply with rule 6.

(1) The grievance procedure set out in this rule applies to disputes involving a lot owner, manager, or an occupier or the owners corporation.

(2) The party making the complaint must prepare a written statement in the approved form.

(3) If there is a grievance committee of the owners corporation, it must be notified of the dispute by the complainant.

(4) If there is no grievance committee, the owners corporation must be notified of any dispute by the complainant, regardless of whether the owners corporation is an immediate party to the dispute.

(5) The parties to the dispute must meet and discuss the matter in dispute, along with either the grievance committee or the owners corporation within 14 working days after the dispute comes to the attention of all the parties.

The obligation of the owners corporation to comply with the rule exists whether or not there is a "grievance committee".

1. Whether there is now a grievance committee, or a dispute resolution committee, or any other committee, of Owners Corporation SP30149 is unclear. There appears to have been a dispute resolution committee in 2010. The evidence included minutes of a "dispute resolution meeting" held on 24 March 2010[30] which Mr Kanter, Mrs Vantwest and Mr Singer all attended. A letter from the manager, Strata Essentials Australia Pty Ltd, trading as DR Strata Management, to Mr Kanter dated 17 May 2010[31] advised him of his right to take proceedings at VCAT if he was "not satisfied with the decision of the owners corporation disputes committee". An email to Mr Kanter from DR Strata Management dated 21 May 2010[32] stated: "Please find attached the statement from the disputes committee...". There is no further mention of any disputes resolution committee in any documents after 2010, and no mention of any grievance committee. Minutes of the 2016 annual general meeting of the owners corporation[33] record that a committee was elected "as per the nominations received" without specifying whose names they were.

1. I think it likely that the disputes resolution committee, or grievance committee, lapsed once Mr Kanter started taking proceedings at VCAT after 2010. I think it likely that there was in 2015 and still is a committee of the owners corporation, but I have no evidence of who is a member of it, although it would be safe to say that Mr Kanter is not.

1. Mrs Vantwest gave evidence, and I find, that she has been chairperson of the owners corporation since 2014. The Act does not impose any particular duties or obligations upon chairpersons. The significance of an appointment of a chairperson is that the chairperson may arrange a ballot of the owners corporation[34] and has a casting vote at a meeting if the voting is equal.[35]

1. On 14 April 2015 Mr Kanter signed and sent to DR Strata Management a formal complaint about the Vantwests, alleging a breach of the rules, as he was entitled to do.[36] The complaint alleged several breaches, including the one I have described as breach (2).[37] DR Strata Management at first scheduled a meeting of the members of the owners corporation for 14 May 2015 to discuss the complaint, then notified Mr Kanter by letter dated 5 May 2015 that the meeting would not proceed because it had "received written notification from three of the four lot owners" that they would not be attending the meeting. DR Strata Management enclosed with the letter a copy of a letter from Mrs Vantwest of the same date.[38] Mrs Vantwest's letter stated that "we" would not be attending because the outcome of the contempt proceeding was "unfair and unjust and hence unlawful" and that Mr Kanter too had breached the rules. In the last paragraph of her letter Mrs Vantwest stated that she was aware that Mr Singer and Mr Weerasinghe would not be attending either.

1. Both reasons that Mrs Vantwest gave were improper reasons. The reasons for the others not having been prepared to attend a meeting did not emerge from the evidence.

1. On 22 October 2015 Mr Kanter signed and sent to Debbie Vantwest a second formal complaint about the Vantwests.[39] The complaint alleged many breaches of the rules, including the one I have described as breach (4).[40] There was no response to the second complaint.

1. In view of the way in which this proceeding has been conducted over several days I greatly doubt that a meeting of the owners corporation under rule 6 would have achieved a resolution of the dispute. The reasons for decision of Judge Jenkins in the contempt proceeding mentioned two occasions when the parties had thought they had achieved a settlement but the settlement had fallen through. From time to time, at directions hearings and on the first day of the final hearing, I had invited the parties to ask me to arrange a compulsory conference. In response Mr Kanter had blown hot and cold, sometimes saying that he would be willing to attend such a conference and sometimes saying that he would not be willing to attend one. The other parties were just as equivocal as he was about the idea of a compulsory conference.

1. Although Mrs Vantwest's reasons for refusing to attend a meeting to deal with Mr Kanter's first complaint were improper, I thought that her conduct during the hearing was measured and reasonable. That one instance of impropriety does not justify a revocation of her appointment as chairperson of the owners corporation. It does not render her any less suitable to carry out the limited functions that a chairperson has. Revocation of her appointment would achieve no useful purpose. I refuse the application for an order revoking her appointment as chairperson.

1. I do not make any order revoking Mrs Vantwest's appointment to a dispute resolution committee or to the owners corporation committee. I have not been persuaded that a dispute resolution committee still exists. There is no evidence that she is a member of the owners corporation committee. If I had been satisfied that she is a member of a committee I still would not have revoked her appointment to it; my reasons would have been the same as those I have given for not revoking her appointment as chairperson.

1. Nor do I consider Mrs Vantwest's refusal to attend a meeting, or her non-response to Mr Kanter's second complaint, as reasons that would justify the imposition upon her of a civil penalty under s166 of the Act. The imposition of a civil penalty is a serious matter that should only be contemplated when there has been a failure to comply with a Tribunal order that a person refrain from breaching a rule or when there has been a more than usually serious breach of a rule. This is not such a case.

1. As for Mr Vantwest, Mr Singer and Mr Weerasinghe, all that Mr Kanter has established about their conduct in relation to rule 6 is that each of them publicly authorised Mrs Vantwest to say on their behalf that they would not attend a meeting to deal with Mr Kanter's first complaint. For reasons which I have expressed in relation to Mrs Vantwest's conduct in relation to rule 6, I consider that the conduct of those other three respondents in relation to rule 6 does not justify the making of an order revoking the appointment of any of them to a committee or the imposition of any civil penalty. I refuse the application for such orders.

1. For the above reasons I shall order Milroy Investments Pty Ltd and Vantwest Pty Ltd to pay to Mr Kanter $800.00.

1. As for the application for an order that requires the respondents to obey the rules, it is tempting to say that such an order was made on 1 October 2011 and is still in effect, so there is no point in making such an order again. Nevertheless, that order was made only against Milroy Investments Australia Pty Ltd, whereas I have found that both that company and Vantwest Pty Ltd have breached rule 3 since 30 January 2015. So there is a point in making such an order requiring both companies to obey rule 3, and I shall make it.

1. For reasons given above all other claims in the proceeding will be dismissed.

1. On two occasions since the hearing the Vantwests have sent emails to the principal registrar to which photographs are attached, asking that I take them into account. They should not have done that. I had not given them any permission to do it. Mr Kanter was entitled to complain about it, and he has done so. No harm has been caused because the photographs did not relate to any of the instances where I have found that there was a breach of the rules relating to parking or leaving vehicles on common property.

1. A heartening feature of an otherwise depressing and regrettable case was Mr Kanter's acknowledgement that since May 2016 the Vantwests' observance of the rules about the use of the common property driveway has been better than it had been before May 2016. I hope that that means that the Tribunal will not need to see these parties again.

[1] The Plan of Strata Subdivision was registered under the Strata Titles Act 1967. In that Act the individual parcels of land shown in a plan which are not common property are called "units". By virtue of the Subdivision Act 1988 Schedule 2 section 2(1)(b), each such registered plan takes effect as if a reference to a unit were a reference to a lot.

[5] The explanation for the confusion is that "Samantha" is a Sinhalese given name for males.

[6] Under s166 of the Act, if VCAT determines that a person has failed to comply with a rule of the owners corporation with which the person had been obliged to comply, VCAT may make an order imposing a civil penalty not exceeding $250.00.

[9] There are some photographs of Mr Singer behind Tab 64 in Exhibit B, but those photographs were not put in evidence by Mr Kanter's solicitor at the hearing, and there was no evidence from Mr Kanter about them.

[10] Kanter v Milroy Investments Australia Pty Ltd [2015] VCAT 90 at [270]. The reasons for decision of Member (now Deputy President) Nihill on 1 October 2011 have not been reported but Judge Jenkins quoted extensively from them in her reasons for decision.

[11] Avranik Pty Ltd v Lloyd [2012] VSC 306.

[12] Reeves v Clark [2011] VCAT 2436 at [15] per Senior Member (now Deputy President) Lulham.

[13] [2015] VCAT 90 at [232].

[14] [2015] VCAT 90 at [234] - [235].

[15] I do not overlook that a vehicle may be described as "parked" even though the driver has remained within it. For reasons given below, it is not necessary in this proceeding to determine what it means to "park" a vehicle.

[16] Regulations 168(1) and (2), and 198(2).

[17] The limitation is that the two sets of statutory rules must deal with closely analogous subject matter: D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, 8th edition, paras 3.36 to 3.38.

[18] D.C. Pearce and R.S. Geddes, op-cit, para 4.40.

[20] Exhibit 15: photographs in the volume behind tabs 2, 25, 26, 32, 35 and 39. See paragraph 29 above.

[21] Exhibit B, tab 66, photographs numbered 015, 163-164 and 167 respectively.

[22] Exhibit 4. Also exhibit 15 tab 32.

[23] Exhibit E: there are several photographs displaying the date 13 April 2015.

[24] Exhibit B, tab 66, photographs 017-024.

[25] Exhibit B, tab 66, photograph 066.

[26] Sections 128 and 137 of the Act. See paragraph 14 above.

[28] McGregor on Damages, 19th edition (2014), para 37-019.

[29] Reardon v Ministry of Housing (unreported, Supreme Court of Victoria, 13 November 1992, Smith J.)

[32] Exhibit H. The exhibit did not include the attachment referred to in the email.

[36] Section 152 of the Act. The complaint is Exhibit A tab 7.

[38] The letter and the enclosure are Exhibit A tab 9.