On or about 30 November 2018 Ms Lam (Applicant) filed a strata application SC 18/51122 in the Tribunal seeking orders:
1. pursuant to s.237(1) of the Strata Schemes Management Act 2015 (SSMA) that Strata Title Management Group Pty Limited be appointed compulsory strata manager of the Respondent to exercise all of the functions of the Respondent for a period of 12 months in accordance with the terms and conditions of their appointment; and
2. pursuant to s.126(2) of the SSMA retrospectively approving the existing alterations made by the Applicant to common property affecting the Applicant's lot namely, the installation of:
1. three (3) CCTV cameras facing the Applicant's backyard,
2. one (1) CCTV camera facing the Applicant's main entry door,
3. one (1) CCTV camera facing the Applicant's garage door and parking spot; and
4. one (1) CCTV camera facing the common property driveway containing the Applicant's bins.
This application, which was the substantive application of an unsuccessful interlocutory application made in the Tribunal in respect of essentially the same matters, SC 18/51122, initially also sought orders:
1. pursuant to s.148(1)(c) of the SSMA that registered special by‑law no.2 (Lot 7 surveillance camera approval) and special by‑law no.4 (surveillance devices by‑law) be repealed;
2. in the alternative, an order pursuant to s.150 of the SSMA that registered special by‑law no.2 (Lot 7 surveillance camera approval) and special by‑law no.4 (surveillance devices by‑law) be declared invalid; and
3. an order pursuant to s.60 of the Civil and Administrative Tribunal Act 2013 that the Respondent owners corporation pay the Applicant's costs of these proceedings;
By the time this application came on for hearing on 22 March 2019 the Applicant had abandoned the relief under s.148(1)(c) of the SSMA and under s.150 of the SSMA on a final basis. In other words, in SC 18/51122 the Applicant only sought the compulsory appointment of a strata manager and retrospective approval of the installation of her six CCTV cameras on common property, and costs.
The second application which was filed by the owners corporation was filed by the current strata manager of SP9562 on or about 26 February 2019 - SC 19/09755 - and sought an order pursuant to s.232 of the SSMA that the owner of Lot 7 remove the 6 surveillance cameras installed in or around Lot 7 and repair damage caused by the installation of these cameras. The basis of this order was that the owner of Lot 7 had breached s.108 of the SSMA and altered common property (by affixing 6 surveillance cameras) without seeking approval beforehand of the owners corporation.
These are not the only two applications which have been brought to the Tribunal in respect of this strata scheme. There is a recent history of disputes. As noted, the Applicant brought an unsuccessful application for interlocutory relief in respect of the substantive relief sought in SC 18/51122. That interlocutory application was dealt with by the Tribunal in SC 18/51123 which was heard on an urgent basis before the Tribunal on 21 December 2018. Principal Member Titterton provided written reasons dated 7 January 2019 dismissing the application for interlocutory relief in Lam v The Owners - Strata Plan No. 9562 [2019] NSWCAT [SC 18/51123].
There have been other strata applications in the Tribunal in connection with this strata scheme. In SC 18/42460 filed on or about 2 October 2018 the Applicant brought an application inter alia pursuant to s. 232 of the SSMA to appoint compulsory strata management claiming the existing strata management was 'out of control'. That application was withdrawn pursuant to s. 55 of the Civil and Administrative Tribunal Act and dismissed on or about 29 November 2018.
The Applicant also commenced strata application SC 18/50268 in the Tribunal against the owners corporation again seeking that a compulsory strata managing agent be appointed to SP9562. That application was also withdrawn on or about 4 December 2018 at about the time that the current interlocutory and final applications (SC 18/51122 and SC 18/51123) were filed on or about 30 November 2018.
The Applicant has apparently either been unsuccessful or has not proceeded in all of the above applications brought to date against the owners corporation.
Without wishing to limit in any way the ambit of matters before the Tribunal for hearing, the major issue before the Tribunal at the hearing and the one that took up the majority of hearing time was the issue of the six CCTV security cameras installed by the Applicant, the registered owner of Lot 7, on common property walls around her unit entitlement. At the outset of the hearing the Tribunal referred Mr Pobi, the Applicant's solicitor, to recent decisions of the Tribunal in respect of this or a similar issue including Lai v Community Association DP270214 [2016] NSWCATCD 58 and Ghabour v The Owners - Strata Plan No. 53284 [2019] NSWCATCD dated 26 February 2019.
Mr Pobi was aware that these decisions constituted persuasive authority before the Tribunal which he would be required to distinguish from the Applicant's circumstances in order to resist an order by the owners corporation that the Applicant's six CCTV security cameras be removed from the common property.
After a brief break to consider these decisions and obtain instructions, Mr Pobi was instructed by the Applicant to pursue her application.
[2]
Hearing
Both SC 18/51122 and SC 19/09755 were heard together with evidence in one being evidence in the other.
The Applicant relied upon a lever arch folder containing all the documents that the Applicant intended to rely upon pursuant to a letter dated 7 February 2019 of Pobi Lawyers, together with a further letter dated 12 February 2019 of Pobi Lawyers with attachments.
The owners corporation relied upon a written submission in a red lever arch folder dated 13 March 2019 containing documents, minutes of general meetings and transcripts of previous tribunal hearings, together with photographs of the offending CCTV cameras.
[3]
The Applicant's evidence
SP9562 consists of eight townhouses built on land at 67 Lincoln Street, Belfield NSW 2191, probably in the 1970s. The townhouses are attractively designed with courtyards and green space. Like all strata schemes approaching 50 years old, SP9562 requires maintenance, upkeep and some capital expenditure.
The Applicant is the owner of Lot 7 in SP9562 and has resided there since the late 1980s. The current strata managing agent of SP9562 is Mr Jackie Li of VJ Ray Pty Limited at 8 Anglo Road, Campsie NSW 2192.
The Applicant provided evidence that she had installed six CCTV cameras to common property walls between 2015 and the present. Relevantly, the Applicant did not dispute that these cameras were affixed to common property walls. The CCTV cameras are of the following types and situated in the following positions:
1. On 6 February 2015 the Applicant installed one black CCTV camera within her front verandah area affixed by screws to a section of the common property wall adjoining her front verandah (Camera 1). Camera 1 is located within the airspace of the Applicant's front verandah and captures images of her front entry door and verandah. Camera 1 is inward facing and does not capture images of the common property driveway (Annexure 20‑21);
2. On 6 February 2015 the Applicant affixed one black CCTV camera which captures images of the Applicant's car parking on the common property driveway adjoining her lot (Camera 2). Camera 2 is affixed by screws to a section of the common property wall adjoining her front verandah (Annexure 21);
3. On 6 February 2015 the Applicant affixed one black CCTV camera to the common property wall adjoining her rear garden (Camera 3). The camera captures images of the rear garden area of the Applicant's lot and does not extend to neighbouring properties or common properties (Annexure 22);
4. On 6 February 2015 the Applicant installed one black CCTV camera to capture images of her rear paved courtyard area (Camera 4). Camera 4 is affixed by screws to a section of the common property wall adjoining the Applicant's rear paved garden (Annexure 23);
5. On 27 July 2018 the Applicant installed one white CCTV camera which captures images of her garbage bins kept on the common property driveway (Camera 5). Camera 5 is affixed by screws to a section of the common property wall adjoining her verandah (Annexure 24);
6. On 27 July 2018 the Applicant caused the installation of one white CCTV camera which captures images of the Applicant's rear paved courtyard area (Camera 6). Camera 6 is affixed by screws to a section of the common property wall adjoining the Applicant's rear paved garden (Annexure 25).
Annexures 20‑25 which show colour photographs of each of the six CCTV cameras in dispute were taken on 24 January 2019. Annexure 27 shows a likeness of the still images recently captured by cameras 1‑6.
Annexure 28 to the Applicant's bundle includes a 5 page statutory declaration sworn 6 February 2019 outlining the history of the Applicant's habitation of 7/67 Lincoln Street, Belfield. In her statutory declaration (annexure 28), she deposed to:
1. Changes in the environment of SP9562 in the 30 years she had lived there from 'a very positive energy into an extreme negative one';
2. Since 2005, the aggression and the violence from next door neighbours;
3. Allegations of a failure by the strata manager to act in the interests of all owners in SP9562;
4. The need to obtain an AVO against her neighbours in the period 2005‑2007;
5. In March 2016 the Applicant submitted her first NCAT application for orders against the registered proprietor of Lot 8 to remove his unregistered car and garbage bins from in front of his garage. The application was later withdrawn.
6. At AGM meetings of the owners corporation of SP9562 between November 2012 and November 2016 the Applicant complained of storm damage to her unit which went unrepaired, a leaning timber dividing fence which required maintenance, and similar matters.
7. At paragraph 26, relevantly the Applicant says:
"On 19 October 2018 I attended an NCAT interim hearing where (the Tribunal) instructed me to lodge an application to the owners corporation to approve the installation of my CCTV cameras."
A resolution to approve the Applicant's CCTV cameras was held at an extraordinary general meeting of the owners corporation on 16 November 2018. This occurred after the Applicant had filed SC 18/42640 in the Tribunal.
In oral evidence given by the Applicant to the Tribunal hearing, the Applicant said that the need for CCTV surveillance cameras around her property was caused by, in recent years:
1. damage to her car and rubbish bins;
2. threats to her personally and her property by other unit owners; and
3. retaliation for her complaints about the failure of the owners corporation to maintain the common property.
[4]
Owners corporation evidence
Mr Girvin took the Tribunal through, in chronological order, the owners corporation's evidence outlining the events relevant to these two applications.
On 6 February 2015 the Applicant first installed four CCTV cameras, two at the front of the property and two at the rear of the property. No consent was obtained from the owners corporation to the installation of these CCTV cameras.
On 27 July 2018 the Applicant installed two more white CCTV cameras, one at the front and one at the rear of her property. Again, no permission or consent was sought from the owners corporation for this. Mr Girvin first raised this issue in an email dated 28 July 2018 to Les Dzwonnik headed "Angelina security cameras" (OC96/225).
On 31 July 2018 the strata manager, Les Dzwonnik, wrote to the Applicant requesting that the 6 cameras be removed from the common property and that any damage caused during installation be rectified. This was contained in a letter dated 31 July 2018 from VJ Ray, Strata Manager, to the Applicant (OC97/225). This is the first request by the owners corporation to remove security cameras.
On 14 August 2018 VJ Ray made a second request to the Applicant to remove the security cameras in a letter dated 14 August 2018 (OC99/225). On 4 September 2018, Jackie Li (now strata manager) of VJ Ray did a site location and apparently knocked on the Applicant's front door. This is recorded in Li's email to the strata committee of SP9562 dated 13 September 2018 (OC100/225).
On 28 September 2018, an extraordinary general meeting (EGM) was held of SP9562. It resolved that the owners corporation proceed with an application for mediation services via NSW Fair Trading against the Applicant in relation to the illegal installation of surveillance cameras on the common property and affecting other residents. The minutes of the meeting showed that the total votes cast at the EGM were 625 in number of which 497 favoured that resolution and 128 were against (OC92/225).
On 16 November 2018 a further EGM of SP9562 was held in which minutes of the meeting showed that a resolution was passed in relation to 'Lot 7 surveillance camera approval' to the effect that the owners corporation of SP9562 specially resolved to NOT permit the owner of Lot 7 to install a surveillance camera on common property pursuant to s. 108 of the Strata Schemes Management Act 2015. 753 UE votes were cast at that EGM of which 625 were against the motion and 128 were in favour of the motion. This motion appeared to address the Applicant's motion to seek retrospective consent for the installation of the surveillance cameras on common property in and around her unit entitlement (OC93/225).
On 19 November 2018 the Applicant received a mediation invitation from NSW Fair Trading in respect of this issue (OC101/225).
On 4 December 2018 a second invitation was issued by NSW Fair Trading to the Applicant to seek mediation of this issue with the owners' corporation.
On 10 December 2018 an email from Strata Mediation to the strata manager stated:
"The Respondent Ms Lam has advised that she will let me know whether she will participate in a mediation session after 21 December 2018. This is because that a NCAT hearing has been scheduled for 21 December 2018. She will make a decision at that mediation subjecting to the outcome of the hearing." (OC103/225)
On 7 January 2019 a third mediation invitation by NSW Fair Trading was issued to the Applicant in respect of the surveillance cameras issued.
On 16 January 2019 Strata Mediation emailed the strata manager of SP9562 stating that the Applicant had contacted it stating that she had re‑lodged an application with the Tribunal and a hearing had been set for 22 March 2019 and that any mediation should be postponed beyond that date (OC105/225).
On 8 January 2019 a further EGM of SP9562 was held.
Mr Girvin submitted that the six surveillance CCTV cameras installed by the Applicants in February 2015 or July 2018 were unlawfully installed because:
1. they were installed on common property;
2. they were installed in breach of by‑laws prohibiting use of surveillance equipment and without the necessary approval or consent of the owners corporation, either by resolution or by-law;
3. the owners corporation neither installed nor directed which way they face, and the owners corporation does not have access to footage or data in respect of the positioning of the CCTV cameras; and
4. the cameras were in breach of the Surveillance Devices Act 2007 (NSW).
[5]
Relevant by-laws and legislation
The by‑laws in SP9562 are contained in the owners' corporation bundle of documents (OC62‑66/225).
Relevantly, by‑law no.2 states under the heading "Changes to Common Property":
"1 An owner or person authorised by an owner may install, without the consent of the Owners' Corporation:
(a) any locking or other safety device for protection of the owner's Lot against intruders or to improve safety within the owner's Lot, or
(b) any screen or other device to prevent entry of animals or insects on the Lot, or
(c) any structure or device to prevent harm to children.
2 Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building.
3 Clause (1) does not apply to the installation of anything that is likely to affect the operation of fire safety devices in the Lot or to reduce the level of safety in the Lots or common property.
4 The owner of the Lot must:
(a) maintain and keep in a state of good and serviceable repair any installation or structure referred to in clause (1) that forms part of the common property and that services the Lot, and
(b) repair any damage caused to any part of the common property by the installation or removal of any locking or safety device, screen, other device or structure referred to at clause (1) that forms part of the common property and that services the Lot.
5 This by-law does not apply to optical or audio surveillance devices or other device of a similar type in accordance with Special By‑Law 3."
Special by‑law no.3 states under the heading "Surveillance Devices":
"An owner or occupier of a Lot must not, except with the prior written approval of the Owners Corporation, knowingly install, use or maintain an optical or audio surveillance device on their lot, or on common property in order to record visually or aurally, or observe or listen to the carrying on of an activity."
In addition to these by‑laws, the Surveillance Devices Act 2007 (NSW) was introduced into the NSW Parliament for the purposes of regulating the installation, use, maintenance and retrieval of surveillance devices, which create offences relating to the improper installation or use of surveillance devices and to impose requirements for the secure storage and destruction of records in connection with surveillance device operation.
Section 8 of the Surveillance Devices Act states:
"(1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises … to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises … without the express or implied consent of the owner or occupier of the premises …"
Breach of s. 8(1) of the Surveillance Devices Act creates a regulatory offence punishable by 100 penalty units of 5 years' imprisonment in the case of a non‑corporate defendant.
An optical surveillance device is defined as:
"Optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment."
[6]
Consideration
At the hearing of this application in the Tribunal, six of the eight unitholders who are also resident in SP9562 attended. By a clear majority, they favoured the orders sought by the owners corporation namely that the security and surveillance cameras installed by the Applicant be removed.
The Applicant acknowledged that the CCTV surveillance cameras installed by her in July 2015 and October 2018 were installed on common property and without the consent of the owners corporation. Nevertheless she sought orders of the Tribunal that the consent of the owners corporation was unreasonably withheld based upon her need for and concerns about her security and safety.
No or no adequate reason was put to the Tribunal as to why the Applicant did not seek approval in advance at an EGM of the owners corporation to install the security cameras and for a by‑law (if appropriate) to be passed for the maintenance of the cameras before she proceeded to install them.
The Tribunal has considered these issues previously in the two decisions outlined in paragraph 9 above. No doubt there are other similar cases reported.
The Applicant made much of the fact in her evidence that the carriage of her resolution for retrospective approval to the EGM of SP9562 on 16 November 2018 was poorly handed by the strata manager. However no, or no adequate evidence was proffered in support of that proposition. In reality, the strata manager must work in the interests of all unitholders and on the decisions of the strata committee to get things done. His job is to ensure that any resolution sought by a unitholder is on the agenda and in the EGM papers. It is not his job to ensure that the resolution is passed. That falls to the EGM itself.
It is clear from the outcome of the EGM on 16 November 2018 and on 8 January 2019 that the Applicant has little support within the owners corporation for her CCTV surveillance cameras. Also, the Applicant appears unaware of the obligations that she may incur in accumulating surveillance data of third parties from surveillance outside her unit entitlement and on common property - which is owned by other persons. There are cyber security, data breach and privacy principles applicable to the collection of data and in the form in which the Applicant intends to collect it, none of which appear to have been given any or any sufficient consideration by the Applicant.
For these reasons, the Tribunal considers that the Applicant has failed to distinguish her circumstances from the authorities referred to in paragraph 9 above. The Tribunal therefore considers that it is appropriate to make an order in SC 19/09755 that if the Applicant does not do so within 28 days, the owners corporation is entitled to remove the six CCTV surveillance cameras installed on the common property walls around Lot 7 and repair damage to the common property walls caused by the installation of the CCTV surveillance cameras, and that the cost of this to be borne by the Applicant.
[7]
Failure to maintain common property
The second limb of relief in SC 18/51122 related to a failure to maintain and repair the common property pursuant to s. 106 of the SSMA. In her bundle of documents, the Applicant attached a number of photographs showing worn or cracked concrete and pebblecrete surfaces, drains, unattached downpipes, and damaged reinforced concrete, concrete slabs and brick retaining walls - see Annexures 8‑16 to the Applicant's bundle of documents.
Mr Girvin in his submissions stated the following:
1. The building which comprises SP9562 is an ageing building and the registered proprietors of the units do what is required to be done within their budgets and in a prioritised manner;
2. Important works such as the roof and parts of the driveway need to be repaired or replaced and the strata committee decides this within available funds;
3. Unitholders are encouraged to undertake their own minor repairs to avoid there being unnecessary demands on the owners corporation funds; and
4. Recently a gardener has been employed part‑time to remediate the lawn areas and plant small trees to improve the common property amenity.
Mr Girvin denied that there was any immediate or dangerous maintenance issues to which the owners corporation had not responded. He acknowledged that the photographs in annexures 6‑18 of the Applicant's bundle of documents related to matters which in due course would be repaired or replaced as soon as funds were available.
Pursuant to s.237(3) of the SSMA an order compulsorily appointing a strata manager to exercise the functions of the owners corporation can only be made if:
"(a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or
(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or
(c) an owners corporation has failed to perform one or more of its duties, or
(d) an owners corporation owes a judgment debt."
The appointment of a compulsory strata manger is a very significant step which must not be taken lightly because it removes from the owners corporation its ability to manage its own affairs and reposes all of the functions of the owners' corporation into single person (Bischoff & Ors v Ahade & Ors [2015] NSWCATAP 135). It can also significantly increase the strata levies of unitholders without proportionate benefit to the maintenance of the common property.
The Tribunal is not satisfied that any alleged deficiencies of the owners corporation in regards to the repair or maintenance of common property in the circumstances of these two applications justify the appointment of a compulsory strata manager.
While the Applicant may not agree with the pace or substance of the maintenance steps undertaken by the owners corporation, that does not of itself form a proper legal basis for the Tribunal to appoint a strata manager, and the Tribunal respectfully declines to do so.
[8]
Orders
In conclusion, the Tribunal considers that in respect of the Applicant's application SC 18/51122, the application should be dismissed.
In respect of application SC 19/09755, the Tribunal considers that an order should be made to the following effect:
1. The respondent shall within 28 days of the date of this order remove from the common property areas around Lot 7 SP 9562 the six CCTV surveillance cameras unlawfully installed by the respondent in July 2015 and in October 2018 and shall repair any damage caused to the applicant's common property by their installation;
2. The respondent shall bear the costs of such removal and of the repair of any damage caused to the applicant's common property by their installation; and
3. If such work and repair is not completed by the respondent within 28 days of the date of this order, then the applicant is at liberty to undertake the work and repair to give effect to Order 1, and at the respondent's expense.
[9]
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.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 May 2019