1. The Tribunal declares that the respondent owners corporation is not entitled, except in case of an emergency, to de-activate the security key fob it has provided to a subsisting lot owner or a subsisting occupier of a lot.

1. The Imperial building in Doncaster is a multi-storey apartment building. It consists of two towers, nine storeys and 93 apartments. The respondent[1] Owners Corporation PS714612M ("the OC") affects the whole of the building: the apartments and common property. The common property includes a car park area, a gymnasium, a lounge and a garden terrace on the fifth floor.
2. The applicant Zhen Sheng Lim is a co-owner of lot 111 on plan of subdivision PS714612M which corresponds to apartment 111.
3. The OC issues security key fobs to owners and occupiers of apartments. They are activated electronically. They allow an owner or occupier access to their apartment and to certain common areas.
4. The OC has registered special rules at the Office of Titles. One of those rules, rule 18.1.1, purports to prohibit a lot owner or occupier from granting a lease, licence or occupancy right for a period of less than 3 months.
5. A dispute between Mr Lim and the OC began when Mr Lim advertised his apartment for short-term letting under an Airbnb arrangement and proceeded to let it to a short-term tenant. On 15 August 2018 the OC gave a notice to Mr Lim alleging that he had breached rule 18.1.1 and requiring him to remedy the breach. Mr Lim responded by writing to the OC and stating that he considered the rule to be invalid.
6. The dispute escalated on 22 August 2018 when there was a confrontation between the Imperial's building manager, Nikolaos Kampouris, and a tenant of Mr Lim who was attempting to move personal effects into apartment 111. On the same day, the OC's committee sent a letter by email to Mr Lim. The letter alleged again that he was breaching the OC rules by letting to short-stay tenants. The letter made other demands of Mr Lim to which he objected and to which I shall refer below.
7. On 25 August 2018 Mr Lim's short-stay tenant - she was there for a stay of 29 nights, until 23 September 2018 - told him that the OC had de-activated the security key fob that had been given to her and she did not have access to the apartment. Mr Lim lent her his own security key fob as a temporary measure.
8. On 27 August 2018 Mr Lim began this proceeding and applied for an interlocutory injunction restraining the OC and Mr Kampouris from preventing his tenant access to apartment 111 and to the foyer of the building and the lifts in the building, and requiring them to re-activate the fob in respect of apartment 111. On the following day, 28 August 2018, I

heard and granted the application for the interlocutory injunction and made the orders sought, which were to remain in force until the hearing and determination of the proceeding or until further order. The OC and Mr Kampouris had been given notice of the hearing and had appeared at it through Counsel.

1. Mr Lim has alleged that the OC had made other demands upon him that discriminated unfairly against him because they made it as difficult as possible for him to let apartment 111 to short-stay tenants. The demands were made in "tenant's directives" that the OC published and gave to lot owners and in the letter of 22 August 2018.
2. The first of those demands was for a tenant to go through an induction process that had the following features:
   • (i) The tenant was required to give the building manager at least 72 hours' notice of an intended move-in.
   • (ii) The move-in had to be on a week day and between the hours of 9.00am and 5.00pm and supervised by the building manager.
   • (iii) On that day the building manager would take the tenant on a tour of the building for the purpose, amongst others, of pointing out safety requirements.
   • (iv) If the tenant wished to move in during a weekend or after hours, the owner had to pay a fee of $300.00.
3. The other of those demands, according to Mr Lim, was for him to pay a fee of $100.00, plus GST, for each induction.
4. Mr Lim applied for:
   • (a) a declaration that rule 18.1.1, purporting to ban short-term tenants or other short-stay occupancies, was invalid;
   • (b) an order preventing the OC from de-activating the security key fobs of any existing tenant or occupier;
   • (c) a declaration that he was not legally required to follow the induction process; and
   • (d) a declaration that he was not obliged to pay a fee for each induction.
5. The hearing of the proceeding was fixed for 25 October 2018 before me. Mr Lim appeared in person. Tony Mosca, the OC's chairperson, appeared for the OC. Mr Lithgow of Counsel appeared for Mr Kampouris. Once Mr Lim told me that he was not seeking any remedy against Mr Kampouris I allowed him to withdraw the proceeding to the extent that it was against Mr Kampouris, and Mr Lithgow withdrew from the hearing. I heard evidence from Mr Lim, Mr Mosca and John Tatangelo, one of the OC's committee members. I reserved my decision and gave each party leave to file and serve a written submission by way of final address. Each party did so.

1. By the time of the hearing, the validity of rule 18.1.1 had disappeared as an issue between the parties, Mr Mosca told me that the OC accepted that as a consequence of a Supreme Court decision[2] the rule was probably invalid and so the OC would not be attempting to enforce it against Mr Lim or against any other owner or occupier. There is no longer an owners corporation dispute[3] between the parties about the rule, so there is nothing about it that I need to determine.

1. There was a conflict of evidence about whether the OC through the building manager had de-activated the security fob of Mr Lim's tenant. Mr Lim's hearsay evidence was that his tenant had told him that the de-activation had occurred. That is why he provided the tenant with his own security fob until the OC complied with the order made on 28 August 2018 for the fob to be re-activated. Mr Tatangelo's hearsay evidence was that the building manager had told him that no de-activation of the tenant's fob had occurred.
2. The OC's letter to Mr Lim dated 22 August 2018 had included the following paragraph:[4]

Furthermore, in order to bring your "rental agreement" into compliance with the Rules and Regulations of Imperial and in line with all other rental apartments and access for their Managing Real Estate Agents, all access keys and fobs to Imperial (except for your personal access fob) will be de-activated for the security of Imperial Common Property, the safety of the Residents and their property and the security of your Lot. As we are aware that your current guests will be occupying your lot until this weekend, de-activation will take effect on Monday 27/8/18.

1. Moreover the OC's written submission accepted as a fact, that the OC had de-activated a security fob on or about 27 August 2018, and went on to submit that the OC had "acted appropriately and within its powers" in doing so.[5]
2. The probabilities are that the OC did de-activate the tenant's fob, as it had threatened on 22 August 2018 to do, as the tenant complained to Mr Lim that it had done, and as the OC's written submission accepted it had done. So I find that the OC did de-activate the fob as alleged. As the OC is maintaining the propriety of that conduct there is a live issue for me determine.
3. The relevant OC rule appears to be rule 5.1.1, which, as far as it is relevant, is:

5.1.1 The Owners Corporation may take measures to protect and secure Common Property and Lots affected by Common Property against fire and other hazards and without limitation may

1. Restrict by means of Security Key. Your access to levels of Lots where you do not own or occupy a Lot.

Rule 5.2.3 states that the security keys remain the property of the OC.

1. In its written submission the OC argued that those rules are within the rule-making power of an owners corporation. No doubt they are, and Mr Lim has not argued otherwise. They do not, however, bear upon the question of whether the OC may not only restrict access that the security key allows but also de-activate the key so that it does not allow access at all. The OC also called in aid rule 14, headed "Moving stock, furniture and goods", but I agree with Mr Lim's written submission that rule 14 is irrelevant to the issue of whether the OC may de-activate a tenant's security fob or key while that tenant is still in occupation of an apartment under a tenancy agreement.
2. A fundamental right of any lot owner is the right to have access to the lot. A fundamental right of a tenant of a lot is the right to exclusive possession of the lot, and hence the right to have access to the lot, for as long as the tenancy subsists. Any right of an owners corporation to compel compliance with its rules must yield to those fundamental rights, in my opinion. An owners corporation has no right to prevent a subsisting tenant from access to the tenanted premises merely because the owner or the tenant has been in breach of a rule. There may be exceptional and urgent circumstances of emergency when the behaviour of an owner or occupier of a lot is so extreme that it threatens the health or safety of other occupiers and the owners corporation has no choice other than to exclude the owner or occupier from the building. There has been nothing like that in the present case.
3. So I make a declaration that, except in the case of an emergency, the OC is not entitled to de-activate the security fob or key of any subsisting lot owner or any subsisting occupier of a lot.

1. The requirement for 3 days' notice to the building manager comes from rule 14.1.ii. Rule 14.2.i provides:

14.2 When moving any stock, furniture or goods, you must ensure that:

1. the moving is conducted in accordance with the Owners Corporation's directions and during permitted hours;

Presumably rule 14.2.i is the source of the obligation of a lot owner or occupier to comply with the "tenant's directive" as to permitted days and hours and to undergo the induction process.

1. Mr Lim has not challenged the OC's power to make such rules. Rather he maintains that the induction process to which the rules relate discriminate against him unfairly. A rule of an owners corporation is of no effect if it unfairly discriminates against a lot owner or an occupier of a lot.[6]
2. Mr Lim has alleged that the "tenant's directive" and the rules have been imposed for an improper collateral purpose: to discourage lot owners from accepting short-stay tenants. I reject the allegation. There has been no evidence of any connection between the "tenant's directive" and the rules on the one hand and the dispute about access for Mr Lim's tenant on the other hand.
3. Next, Mr Lim alleges that the directive and the rules that impose the mandatory induction-process requirement are discriminatory because they "effectively prohibit" any move-in outside week days and business hours. But they do not. They provide for a lot owner or occupier to achieve a move-in outside those days and hours if a fee of $300.00 is paid. I see nothing unfair, unreasonable or discriminatory about that. It is reasonable for there to be a requirement that the building manager supervise a move-in and make the person moving in familiar with safety and behavioural requirements. If that occurs outside normal working hours the OC would have to pay the manager for that extra time. It is reasonable for the OC to seek reimbursement from the lot owner involved.
4. Finally, Mr Lim submitted that any such fee should not be directed to the particular lot owner but should be apportioned in accordance with lot liability, as required by ss 23 and 24 of the Owners Corporations Act 2006. I reject the submission. These sections concern fees levied for the ordinary recurrent obligations of an owners corporation or for extraordinary items of expenditure. The charge of $300.00 is not such a fee.
5. Mr Lim has not made out his claim in relation to the mandatory induction procedure.

1. I think that Mr Lim has not understood the OC's position about a fee for an induction. The true position was set out in the letter to him dated 22 August 2018[7]:

In complying fully with the Rules and Regulations of Imperial, should you wish to continue to allow access for multiple short-stay residencies, the continuing use of the Building Manager's time for your "private use" for commercial purposes of ongoing and multiple

induction processes will incur a service fee of $100.00 plus GST per induction over and above 2 inductions per annum, payable in advance to the Owners Corporation PS71612M.

As Mr Mosca said in his evidence, which I accept, the OC does not usually charge any fee for an induction of a tenant, so long as the inductions are not more than two per year. If a lot owner's tenancy arrangements mean that more than two inductions are required in any one year there will be a fee of $100.00 plus GST for each additional induction.

1. I accept the OC's submission that the requirement for payment of an additional induction fee in those circumstances is not discriminatory because it applies to all lot owners and occupiers. If it potentially affects Mr Lim more than other lot owners, that is because Mr Lim chooses to have numerous short-stay tenants.
2. Mr Lim has not made out his claim about the induction fee.

1. I shall be making a declaration that, except in the case of an emergency, the OC is not entitled to de-activate the security key fob of any subsisting lot owner or occupier. Otherwise the proceeding will be dismissed.
2. Mr Lim has paid filing fees totalling $276.10. There is a presumption that VCAT should order the applicant in a proceeding brought under the Owners Corporations Act 2006 if the applicant has been substantially successful.[8] Although Mr Lim obtained the interlocutory injunction which he sought, and is obtaining the benefit of the declaration about de-activation of a key fob, he has otherwise failed in the proceeding. He has not been substantially successful. I make no order about reimbursement of filing fees.

[1] There was a second respondent but the claim against him was withdrawn at the hearing. See paragraph 13 below.

[2] Owners Corporation PS50139P v Balcombe [2016] VSC 384.

[3] As defined in s 162 of the Owners Corporations Act 2006.

[5] Respondent's submission dated 15 November 2018, paragraph 11.

[6] Owners Corporations Act 2006 s 140.

[7] Again, the underlining was in the letter.

[8] Victorian Civil and Administrative Tribunal act 1998 ss 115B, 115C(1)(c) and (2).