1. OC1 and Owners Corporation 2 PS611240X ("OC 2"), claimed that Mr Brady wrongfully and in breach of the Special and/or Model Rules ("the Rules"):
   • (a) bolted an umbrella into the tile flooring of common property 1 located within the terrace/balcony of Mr Brady's lot; and
   • (b) demolished the common property wall between Mr Brady's lot and common property 2, installed a door on the common property wall and created a doorway through the common property wall.
2. OC1 and OC2 sought orders and declarations that Mr Brady was in breach of the Special and/or Model Rules; that he rectify all breaches; that he pay compensation to them in respect of damage to the common property; that Mr Brady pay all costs including legal costs of OC 1 and 2 incurred by them as a result of the breach of any rule, costs pursuant to statute and interest.
3. At the commencement of the hearing the parties advised that they had settled a large part of the proceeding and that the only remaining claim is made by OC1 (referred to hereafter as "the OC") seeking that the Tribunal exercise its discretion under section 165 of the Owners Corporations Act 2006 ("the Act") to make orders that Mr Brady "reinstate the wall to its pre-doorway condition within a reasonable time" on the basis that, by failing to obtain written consent from the OC to install the door, Mr Brady is in breach of the following:
   • (a) Special Rule 2.1(b) : "Except for the purposes of maintenance and repair and with the written consent of the Owners Corporation, a Proprietor or occupier of a Lot must not do anything or permit anything to be done on or in relation to that Lot or the Common Property so that:

.... the structural and functional integrity of any part of the Common Property is impaired";

(b) Special Rule 4.1: "Damage to Common Property: A proprietor or occupier of a Lot shall not mark, paint or the like, or otherwise damage or deface, any structure that forms part of the Common Property without the prior approval in writing from the Owners Corporation..."; and

(c) Model Rule 3.3: "Damage to Common Property:

1. An owner or occupier of a lot must not damage or alter the common property without the written approval of the owners corporation.
2. An owner or occupier of a lot must not damage or alter a structure that forms part of the common property without the written approval of the owners corporation."

1. Mr Brady maintained in his defence to the remaining claim that:
   • (a) The OC has not obtained approval (either by ordinary or special resolution) of the members of the OC at any general meeting authorising the OC to commence this proceeding against him;
   • (b) The special rules are valid only insofar as they do not contravene section 140 of the Owners Corporations Act;
   • (c) The OC is estopped from departing from representations made to Mr Brady that the installation the door will be retrospectively approved if:
     1. Mr Brady agreed to pay for a report from an independent structural engineer obtained by the OC; and
     2. the report obtained stated that there is no damage to the structural integrity of the property.
   • (d) He sought permission from the chairman of the committee Phillip Pezzi and committee member Paul Smith to install the doorway and that they provided authorisation both orally and by implication for the door to be installed;
   • (e) He reasonably believed, based on the representation made by the chairman Pezzi and the committee member Smith that the works "would be ok", that he had approval for the door to be installed;
   • (f) The door does not cause a hazard to the health, safety or security of an owner of another lot; does not obstruct the lawful use and enjoyment of the property and has not damaged or altered common property; and
   • (g) He is entitled to maintain the door and doorway on the common property wall by reason of an implied easement under section 12(2) of the Subdivision Act 1988.

1. The hearing commenced on 21 February 2018 and concluded after two days on 22 February 2018. At the conclusion of the evidence, the parties requested the opportunity to file and serve submissions in writing. I directed that the OC file and serve closing submissions by 9 March 2018, Mr Brady file and serve closing submissions by 23 March 2018 and the OC file and serve further submissions in reply by 30 March 2018.
2. I indicated that my decision will be given in writing and informed them that I will give leave to apply for a costs hearing within 21 days of my decision being delivered.
3. I reserved my decision for the filing of submissions. The parties filed their submissions in accordance with my directions. I have read and considered the submissions and now provide my reasons for decision.

1. The OC called two witnesses: Justin Capicchiano, the principal of the OC's building maintenance contractor, and Sandra Addyman, chairperson of OC1 since 27 June 2012.
2. Mr Capicchiano is a former lot owner in the Bianca. He was appointed building manager in early 2013. In or about August 2013 he noticed in the building's carpark a utility containing rubble and painted besser block. He noted that the rubble was the same colour as the paintwork of the building and concluded that some demolition work was being done. He stated that he had received no notification of any works at the building. He proceeded to investigate and found Sean Brady, Mr Brady's son, cutting away a common property wall dividing Mr Brady's lot with common property. He stated that he spoke with Anthony Brady at the site on that day and Mr Brady told him he was putting in a doorway to allow access to the builder to perform some rectification tiling work on his terrace. Mr Capicchiano's evidence was that Mr Brady told him that he will reinstate the wall once all rectification tiling works were done.
3. Mr Capicchiano stated that he did not know of the doorway work until that day in August 2013, he had not put any lift covers on the lifts or taken other steps to protect the building because he had not been made aware of what Mr Brady was doing until that day. He stated that he reported the situation to committee member Wayne Hollins and to Peter Maxwell, the owner of 704 (Mr Brady's next door neighbour), who both stated that they had no knowledge of the door nor of any consents to the door being installed.
4. The doorway works took three days to complete and Mr Capicchiano attended on all three days to check on the work. He gave evidence that the defect works on Mr Brady's terrace started later and took some time to complete. He stated that in or about mid to late 2014, after the defect works to Mr Brady's terrace were done, he approached Mr Brady about reinstating the wall, asked Mr Brady when the wall was to be reinstated and Mr Brady replied "over my dead body".
5. Mr Capicchiano gave evidence that other lots in the building needed similar defect works done on their terraces and that no other lot owner needed to cut through a common property wall. He stated that Paul Smith's lot has the same configuration as Mr Brady's and that, when rectification work was done on Mr Smith's terrace, no door was installed but rather Mr Smith had a scaffold erected on both sides of the wall to allow the builder access. He stated that there was no reason why the same could not be done in Mr Brady's case.
6. Under cross-examination, Mr Capicchiano stated that when he saw the demolition work being done he called the OC manager Michelle Frichot, who had "no idea" about the door but she did not tell him to do anything.
7. Mr Capicchiano conceded under cross-examination that :
   • (a) The door was flush with the wall and that it doesn't interfere with the common property;
   • (b) There is no other use for the section of the wall "that anyone would want to use it for";
   • (c) The door is in an area not readily accessible by the general population of the building;
   • (d) Unless you are an occupier of the 7th floor, or invited by someone on the 7th floor, you can't get up to the walkway where the door is;
   • (e) The only purpose of the walkway is to enable you to get a vista of the city, that it serves no other purpose other than to look at the city lights or fireworks;
   • (f) He is on a three year contract as building manager, renewable by the OC committee every three years and it is entirely dependent on the OC Committee if his contract is renewed.
8. The applicant's second witness, Mrs Sandra Addyman, is the present Chairperson of the OC, a position she has held since 27 June 2012. She gave evidence that she is a retired stockbroker and spends 6 months of the year in the United Kingdom. Her frequent absences required her on two occasions in 2013 to delegate the role of Chairperson to Wayne Hollins and Peter Maxwell, but that, otherwise, the OC committee communicated very effectively and regularly by telephone and email. She stated that they are an "egalitarian committee" and they "discuss things". She stated that the committee never received any request to approve the installation of the door from Mr Brady, did not consent to its installation and did not approve it after it was installed. She gave evidence that the present proceeding was brought against Mr Brady by a unanimous resolution of the Committee.
9. Under cross-examination, Mrs Addyman stated that:
   • (a) as OC Chairperson, she was intimately involved with the defects issues but the OC committee established a Building Defects Sub-committee ("the Building Sub-committee") specifically to investigate and document the "problems that were deemed to be Hansen and Yuncken defects";
   • (b) the members of the Building Sub-committee were Wayne Hollins, Paul Smith and Phillip Pezzi;
   • (c) the OC Committee liaised with Mr Brady about getting approval retrospectively because they were trying to be reasonable, understanding and trying to find an amicable solution; they didn't want to act unreasonably or capriciously and wanted to ensure they were doing the best for the building;
   • (d) the OC Committee did not consider that the report obtained by Mr Brady from Rincovitch Consultants Pty Ltd to be independent because that company was appointed by Mr Brady;
   • (e) the Committee's position is that there is no structural damage to the wall by the door;
   • (f) the walkway on the 7th floor is used by very few people, being mainly the people from the 7th floor and their invitees;
   • (g) the door is "relatively flush" and doesn't offend anyone;
   • (h) she hasn't seen the door herself but the members of the OC committee who have seen it describe it as "a good job...it was well done";
   • (i) the problem with allowing the door is the concern that it would set a precedent and that the building might "end up like a patchwork quilt; and
   • (j) there are only 4 lots in the building with this type of common property wall structure: lots 703, 704, 605 and 604.

1. Three witnesses were called for the respondent: Phillip Pezzi, Paul Smith and Anthony Brady.
2. Mr Pezzi, the (beneficial) owner of lot 604, stated that he is a property developer and was the inaugural Chairman of the OC Committee from 2010 to 2012. His apartment was directly below Mr Brady's and had been the subject of water leaks from Mr Brady's terrace. He was aware by 7 March 2013 that he was not the chairman of the OC at that time. In early 2013 he had conversations with Tony Brady about installing a door to allow access to the builder, Hansen and Yuncken, to undertake defects works. Committee member Paul Smith was also present during these conversations. He stated that once the extent of the defects works was established, it seemed "logical" that a door to gain access to Mr Brady's property be installed. He stated that no one who heard about the door raised any objection and that the purpose of the walkway was "zero purpose whatsoever", being used probably once a year for a few residents to watch the fireworks.
3. Under cross-examination, Mr Pezzi stated that:
   • (a) The leaks at his property dated back to 2011 and were fixed by 2011/2012, well before the door was put in;
   • (b) He couldn't recall giving Mr Brady permission in writing to install the door but did recall discussing the door with members of the OC and some residents of the building;
   • (c) He couldn't recall the committee itself ever authorising Mr Brady to install the door;
4. In re-examination Mr Pezzi stated that:
   • (a) The other members of the OC he discussed the door with were his wife Ana and Fred Polizzi;
   • (b) Mr Polizzi said that it "made sense" to install the door and that he was "blasé" about it;
   • (c) He recalls Wayne Hollins being at one of the meetings where the door was discussed and he did not raise any objection to it;
   • (d) Over the many years that he has been involved in the OC, including the years he was chairman, many decisions were made "on the fly";
   • (e) The types of decisions made "on the fly" were usually maintenance and day to day issues;
   • (f) Many discussions were had about the door before it was installed and he recalls that Justin Capicchiano and Wayne Hollins were present at some of them.
5. The respondent's second witness, Mr Smith, stated that he is the owner of lot 605 in the Bianca and has resided there since 2010. He is a developer of multi-residence properties and owns a building company. He was an OC committee member for 2 to 3 years and was also a member of the Building Sub-committee which was established to deal with the Hansen and Yuncken defects.
6. He was aware of the defects to Mr Brady's apartment. Originally it was thought that the umbrella was causing leaks but then they thought it may have been a water pipe under Mr Brady's barbeque area. They pulled up tiles under the umbrella and it was revealed that the umbrella was installed correctly by a qualified contractor and they found no leaks. Pulling up the tiles showed that the bolts went into the screed, which did not allow it to penetrate the slab and the membrane. They discovered that the issues were with the tiles on Mr Brady's balcony, that they had to be removed and re-laid.
7. Mr Smith stated that he, Mr Pezzi and Mr Brady had numerous meetings regarding the tiles on Mr Brady's balcony. Hansen and Yuncken were giving them "a whole lot of excuses about not wanting to come back to deal with the defects". Mr Brady offered to pay for a door to be installed so that Hansen and Yuncken could not find any more excuses about coming back to do the work. Mr Smith stated that they were not only concerned about Mr Brady's terrace but "right through the building" Hansen and Yuncken were finding many excuses for why they would not come back.
8. Mr Smith thought that Mr Brady's offer to install a door at his own cost was a great offer and he said "do it". He gave evidence that his own balcony had similar defects to Mr Brady's and Hansen and Yuncken offered to do Mr Brady's balcony and re-use salvaged tiles from Mr Brady's balcony on his. He stated that he was not very excited about that offer but he accepted it nonetheless because "in [his] mind, once they rectified Tony's balcony it meant that they accepted responsibility and it would be a lot easier to get them to fix not only [his] balcony but other balconies in the complex, including common areas".
9. Mr Smith stated that the work on his balcony was small, he did not need to put in a door and access was accommodated by erecting scaffolding. Mr Brady's works needed two layers of tiles to be removed and 60mm of screed underneath, so that three layers had to be removed, not only tiles. His work only required the pulling up of tiles from a small area.
10. Mr Smith gave evidence that he was present at the 2017 AGM where it was resolved to issue proceedings against Hansen and Yuncken and that there was never any discussion at that AGM to issue this proceeding against Mr Brady. He stated that he considers the proceeding against Mr Brady "crazy" and that he is not happy that the OC has taken this course against him.
11. Under cross-examination, Mr Smith stated that:
    • (a) He, Phil Pezzi and Mr Brady had numerous meetings - about 3 or 4 conversations - about the door and that as a committee they agreed that he could install the door;
    • (b) There was a meeting where they agreed to allow the doorway to be installed and that while he cannot recall actually saying "I agree" he said that if he didn't agree he certainly would have said so;
    • (c) He believed that there were a number of people on the committee who also knew of the proposal, including Wayne Hollins and Justin Capicchiano, and no one disagreed with it at the time;
    • (d) He is confident that the people on the committee, whether the whole of the committee or just 3 or 4 of them, discussed the installation of Mr Brady's doorway and it was agreed, which is why it was installed;
    • (e) The doorway took 3 or 4 days to complete and he does not know why Mr Hollins and Mr Capicchiano just didn't stop the work if they objected to it;
    • (f) He resigned from the Committee in late 2013 because whenever they tried to get things resolved with Hansen and Yuncken they just "hit a brick wall every time" and that there were so many issues with the building that it just went "on and on".
12. Anthony Brady gave evidence that he purchased his unit in October 2010. The terrace is a big feature of his unit, stating that whilst the apartment was 134 square metres, the terrace was larger, comprising some 200 square metres. Soon after he purchased his unit, defects were identified with the building when the lot owner beneath Mr Brady's apartment, Phillip Pezzi, noticed water leaks in his kitchen. Initially, they believed the leaks were caused by an unsealed area near Mr Brady's barbeque. Despite sealing this area, the leaks continued. The umbrella installed on Mr Brady's terrace was also examined. It was eventually discovered that the tiling on Mr Brady's terrace was causing the leak into Mr Pezzi's unit and that almost the entirety of Mr Brady's tiling had to be removed and re-laid.
13. It was clear very early on that the entire development was affected by waterproofing membrane defects. According to Mr Brady, Hansen and Yuncken was very difficult to deal with and complained that access to his terrace was making the rectification works difficult. Mr Brady stated that Hansen and Yuncken suggested cutting a doorway through the wall to facilitate the defect works on the terrace, which, given its size, were significant. He stated that erecting a scaffold on either side of the wall was not acceptable as material couldn't be carried over a scaffold.
14. In or about March 2013 Mr Brady spoke with Phillip Pezzi, (who he believed was the chairman of the OC committee) and Paul Smith (who he thought was a committee member) about installing the door. Mr Brady gave evidence that "after a couple of conversations" [with Paul Smith] "we agreed on it all" and that "for speed purposes" he agreed to install the door at his own cost to "get the works done" because "if the OC was involved it would take...an endless time to get it done".
15. When asked if he was aware of the OC Rules, Mr Brady said that he was "now, not totally aware then, though". When asked by his counsel if he was aware that he was required to have written consent to alter common property, Mr Brady responded that at the time he "thought all that was taken care of by the chairman and OC committee".
16. Mr Brady gave evidence that Mr Capicchiano knew of the doorway work "at least the day before" demolition (being in or about August 2013) because he saw his son Sean deliver some material. He stated that the "lift covers were on before work started", on "probably day 1", insisting that that Mr Capicchiano knew of the demolition works beforehand.
17. Mr Brady gave evidence that the door was custom made frame and door and cost about $3000 to $4000 to install. The installation took about 3 days, during which Mr Capicchiano attended every day.
18. Mr Brady stated that he first discovered that the OC was complaining about the door "later on that year".
19. Mr Brady was referred to a letter dated 18 November 2013 sent to him by the OC manager Michelle Frichot[1] stating that the OC has "been informed that you have made structural changes to your apartment by...cutting out of a door in common property wall, providing access to your apartment" and requesting "evidence of the Owner's Corporation Committee Approval (as required by the OC Rules) that you obtained".
20. Mr Brady stated that after receiving that letter he called Ms Frichot and told her that he "agreed with the OC people Pezzi and Smith". Ms Frichot then wrote to him again on 20 December 2013[2] empathising with his predicament that he had been "falsely led to believe" by Pezzi and "The Knight Alliance and/or Hansen & Yuncken" [that it was acceptable to make those structural changes to the terrace and common property], it was nonetheless the position of the OC that "those matters should have been agreed by the Committee and are breaches of the Owners Corporation Rules". The letter then requests that Mr Brady suggests "a date when the door can be reinstated as early as possible".
21. Mr Brady received notices from the OC to rectify the breaches in June 2014 and further correspondence from the OC about rectifying the breaches. He was specifically referred to the OC's letter dated 2 April 2015[3] which acknowledged his "formal request that the committee reconsider and retrospectively authorise installation of the door". That letter stated that "the Committee will now consider the application by giving consideration to the OC2 rules, including (but not limited to) Rule 4 Damage to Common Property. To commence this process they will, as your expense as offered appoint an independent structural engineer to inspect and consequently report of the gate/door".
22. The letter of 2 April 2015 requested that Mr Brady confirm that he is prepared to proceed on that basis. Mr Brady gave evidence that by letter dated 16 April 2015 he provided the confirmation requested to the then OC manager Hayley Randall and that the OC did nothing in response to this letter.
23. Mr Brady stated that, because of this inaction by the OC, he obtained a report dated 20 May 2015 from Rincovitch Consultants Pty Ltd, structural engineers, who provided the following:
    • (a) "An 800mm nominal wide door has been installed through a 1.8m high block wall. The wall is 140mm thick and to the best of our knowledge is a reinforced, concrete filled block wall. As such it would structurally cantilever from the supporting slab and therefore the installation of door would not affect the structural integrity of the wall".[4]
24. Mr Brady maintained that he provided that report to the OC by letter dated 9 June 2015, expected that it would go to the committee and that it would be "sorted".
25. Under cross-examination, Mr Brady stated that:
    • (a) He is a property developer (the "Brady" of Brady Constructions) who has developed and constructed around "20-odd buildings" and several thousand residential apartments in Melbourne throughout his career;
    • (b) He has a direct and indirect interest in about 750 apartments currently under construction;
    • (c) As a result of his ownership or interest in various apartments over the years, he has been involved in "probably nearly 15 or 20" owners corporations;
    • (d) He is a majority shareholder in "Brady Residential", which provides property management services through its Property Management Department and owners corporations services through "Brady Owners Corporation Services";
    • (e) He has enormous expertise in the Victorian building industry which extends to property management and owners corporations;
    • (f) It was his honest belief that Phillip Pezzi was the chairman at the time he approved the door;
    • (g) It never occurred to him to seek confirmation in writing from the committee and he did not ask anyone from his organisation about it because he considered it a private matter;
    • (h) He never said to Mr Capicchiano that he would reinstate the door and he never said "over my dead body" because he "would never say that to anyone";
    • (i) He has no actual knowledge about whether the letter dated 16 April 2015, which is unsigned, was actually sent to the OC;
    • (j) He could not say why the letter of 16 April 2015 is unsigned;
    • (k) He could not say why the letter of 9 June 2015 was sent in response to the OC's letter of 2 April 2015; why it contained the same address (including the same typographical error), the same subject line, the exact same first, second and third paragraphs as the unsigned letter dated 16 April 2015;
    • (l) He paid for the report prepared by Rincovitch Consultants but he could not say how much he paid nor is he able to provide an invoice or receipt of payment;

1. It is not disputed that Mr Brady did not obtain the OCs written approval to install the door. This omission is uncontroversial and accordingly I am satisfied that by failing to obtain approval in writing from the OC Mr Brady has breached special rules 2.1(b) and 4.1 and model rule 3.3.
2. Mr Brady's position throughout this proceeding is that, whilst he never obtained consent in writing, he did obtain verbal approval from two people who he believed were members of the OC Committee, that he reasonably believed that this was sufficient consent and that, when he discovered that the OC did indeed object to the installation of the door, he made attempts to obtain approval retrospectively.
3. I accept the OC's submissions that oral encouragement from one or two members of the committee is insufficient. The special and model rules required Mr Brady to obtain written permission. I also accept that Mr Brady does not claim to have ever obtained written consent from any committee member much less from the committee itself.
4. Furthermore, I accept the OC's submission[5] that Mr Brady's "belief" that he was authorised is an untenable argument for the reasons outlined in the submissions, namely that:
   • (a) Mr Brady's subjective understanding is no answer to the special and model rules; and
   • (b) The claim is fanciful, given Mr Brady's "enormous profile and vast experience" as one of Melbourne's leading residential property developers.
5. However, I do not accept the OC's submission that the finding of a breach of the rules gives the OC a "right"[6] to an order that "Mr Brady reinstate the wall to its pre-doorway condition within a reasonable time". I agree with Mr Brady's submission that "the way in which the Tribunal must determine this proceeding is more nuanced than the position advanced"[7] by the OC.
6. The Act confers on the Tribunal broad and discretionary powers to resolve disputes in circumstances where technical breaches of the rules have occurred. I accept Mr Brady's submissions that the position advanced by the OC is an artificially narrow interpretation of the Tribunal's powers to determine a dispute under Part 11 of the Act.
7. The Act does not impose upon the Tribunal an obligation to make a reinstatement order in circumstances where it finds that a breach of a rule has occurred. Part 11 of the Act is expressed in the discretionary language ("may") and the only provision expressed in mandatory terms ("must") is section 167.
8. The relevant provisions of section 165 of the Act provide:

"(1) In determining an owners corporation dispute, VCAT may make any order it considers fair including one or more of the following -

(a) An order requiring a party to do or refrain from doing something;

(b) An order requiring a party to comply with this Act of the regulations or the rules of the owners corporation."

1. Section 167 outlines what VCAT must consider when making an order. It provides that:

"VCAT in making an order must consider the following:

(a) The conduct of the parties;

(b) An act or omission or proposed act or omission by a party;

(c) The impact of a resolution or proposed resolution on the lot owners as a whole;

(d) Whether a resolution or proposed resolution is oppressive to, unfairly prejudicial to or unfairly discriminates against, a lot owner or lot owners;

(e) Any other matter VCAT thinks relevant."

1. It follows therefore that the Tribunal may make any order it considers fair and in doing so must consider the factors outlined in section 167. The discretion to make any order the Tribunal considers fair includes a discretion not to make any order at all if the Tribunal considers it fair not to make any order.

1. In examining the conduct of Mr Brady, I consider that he was imprudent in creating the doorway on a "couple of conversations" with Mr Pezzi and Mr Smith. Given his vast experience as a developer and his involvement in a large number of owners corporations in Melbourne, I consider it most unlikely that Mr Brady did not know that he required written consent to demolish the wall and build the door.
2. I am satisfied on balance that Mr Brady understood that he needed written approval from the OC but "for speed purposes" decided to install the door at his own cost to "get the works done" because "if the OC was involved it would take...an endless time to get it done". In other words, I comfortably surmise from Mr Brady's own words that he took this step knowingly in order to avoid delays that may be occasioned by formally seeking written approval through the OC.
3. However, I do not ignore the context in which Mr Brady took the steps that he did. He did not simply decide one day that a doorway along the common wall would be a good idea, that it would make his life easier or add value to his property. It was not an action he took capriciously or without cause. He found himself in a predicament not of his own making and did his best to deal with significant defects on his terrace by working collaboratively with the appointed members of the Building Sub-committee and the builder.
4. I am satisfied that Mr Brady cooperated with the OC and the builder to attend to the significant defects affecting his balcony. He was open and transparent at all times and discussed his options at length over the course of many months.
5. In examining the conduct of the OC, I again cannot ignore the context of the widespread building defects and the protracted and difficult negotiations with the builder, which commenced in 2011 and continue to this day. I am satisfied on the totality of the evidence that there was a great deal of discussion and numerous meetings on-site about the defects to Mr Brady's terrace. I consider it more likely than not that difficulties with access to Mr Brady's terrace were exploited by the builder as an obstacle to undertaking the defect works and that the installation of the doorway was openly discussed and put forward as an obvious and logical solution.
6. The position taken by the OC, that "oral encouragement from one or two members of the committee is insufficient",[8] whilst correct in law,[9] appears nonetheless to ignore the fact that Mr Pezzi and Mr Smith were members of the Building Sub-committee and the discussions about the door were made in the context of their role to investigate and document "problems that were deemed to be Hansen & Yuncken defects".
7. I do not accept the OC's submission that "No one purporting to speak on behalf of the OC (cf Mr Pezzi and Mr Smith both expressing personal opinions) has ever purported to give Mr Brady even oral permission to install and/or retain the doorway".[10] Mr Pezzi and Mr Smith were appointed by the OC Committee to deal with issues relating to the building defects and they participated in discussions and negotiations with all parties, including Mr Brady, in that capacity. They were not merely having conversations with Mr Brady as friends or neighbours nor were they merely "expressing personal opinions". They participated in the discussions with the express authority of the OC Committee which appointed them members of the Building Sub-committee. While this does not detract from Mr Brady's obligation to comply with the Rules and obtain consent in writing, it certainly goes a long way towards explaining his conduct.
8. On balance, I find that whilst Mr Brady was imprudent not to obtain written consent, he nonetheless made every effort to discuss his options with the members of the OC who were authorised to deal with the defects. In circumstances where no objections to the installation of the door were raised, I find his conduct reasonable.

An act or omission or proposed act or omission by a party

1. I am satisfied that Mr Brady acted imprudently and in breach of the Rules in demolishing the common property wall and installing a door without written approval. Given the delay between the date of his conversations with Mr Pezzi and Mr Smith and the date he actually installed the door, I am satisfied that the circumstances afforded him sufficient time to write to the OC and obtain its approval in writing and that there was no urgency that required him to act "for speed purposes" without written approval.
2. However, I am equally satisfied that Mr Pezzi and Mr Smith, as the appointed members of the Building Sub-committee, could at any time have raised any objections to the installation of the door. The OC Committee gave them the authority to investigate and document any issues associated with the building defects, presumably for the purpose of reporting back to the OC Committee. They had ample opportunity to take the issue of the door to the OC Committee if there were any objections.
3. The timelines are uncontroversial: Mr Brady had the conversations about installing the door with Mr Pezzi and Mr Smith in March 2013. The doorway was not installed until August 2013, some five months later. Mr Brady was frank and open about his intentions at all times. Whilst I accept that he should have obtained approval in writing, I also find that the OC failed to act in a way that could have protected its interests or made its objection clear.
4. It was not until 18 November 2013, when the installation was well and truly completed, that the OC wrote to Mr Brady stating that they have "been informed that you have made structural changes to your apartment by...cutting out of a door in common property wall" and requesting evidence of the OC's approval. On the face of it, this letter suggests that this is when the OC first became aware of the doorway. The evidence does not support such a conclusion. I find that at the very least the majority of members of the Building Sub-committee (Mr Smith and Mr Pezzi) knew about Mr Brady's plans to install a doorway as early as March 2013 and took no steps to object to these plans or take them to the OC for consideration.
5. I am also satisfied on the unchallenged evidence of Mr Pezzi and Mr Smith that it is more likely than not that Wayne Hollins, the third member of the Building Sub-committee, participated in the discussions about the door before any work commenced. Mr Hollins was not called to challenge Mr Pezzi and Mr Smith. Accordingly, theirs being the best evidence before me on this point, I find that Mr Hollins too was aware of Mr Brady's intention to install the door well before any work on the door commenced.
6. Furthermore, the OC's own witness, Mr Capicchiano, gave evidence that he telephoned Mr Hollins on the day in August 2013 that he found Mr Brady demolishing the wall and informed him about the demolition work. Mr Hollins did nothing with this information. Mr Capicchiano also stated that he telephoned the OC Manager Michelle Frichot on that same day and she too took no steps at the time to protect the OC's interests.
7. I am satisfied that Mr Hollins and the OC Manager Ms Frichot knew of the demolition works on that first day and neither did anything to stop them. The works took three days to complete. Both Mr Hollins and Ms Frichot could have taken steps on that first day and on any of the subsequent days to stop the construction of the doorway pending consideration by the OC. Neither did. It appears disingenuous to assert that they were informed only after the fact when the evidence suggests that they could have taken steps much earlier to prevent further demolition, before any construction had commenced.
8. I find that all three members of the Building Sub-committee and the OC Manager knew about Mr Brady's intention to install the door before any installation work commenced. They could have stopped the works before any installation had commenced. They did not. I consider it unfair to allow the OC to subsequently adopt a contrary position in circumstances where Mr Brady has spent time and money constructing the doorway and installing the door.

The impact of a resolution or proposed resolution on the lot owners as a whole.

1. The OC seeks to reinstate the wall to its pre-doorway condition. In considering the impact of this proposed resolution on the lot owners as a whole, I take into account the following considerations:
   • (a) It is generally accepted that the wall, the door and the abutting walkway are accessible only to occupiers of the 7th floor and their invitees. It is not accessible to the general public or to lot owners without a pass to the 7th floor. There are five other apartments the 7th floor, however it appears that no other lot owner would have any use for that section of the wall in which the doorway is located.
   • (b) The walkway is rarely used and, if used, it is generally to enable the occupiers of the 7th floor and their invitees to view the city lights or fireworks.
   • (c) Mrs Addyman, the only current lot owner called to give evidence by the OC, has not seen the door nor has been to the 7th floor since 2012 or 2013, when invited by Mr Brady to examine his terrace.
   • (d) The OC did not call one other lot owner or occupier to give evidence of the impact the doorway has on their amenity, safety or comfort. No evidence of any objections from other lot owners or occupiers was produced. The owner of lot 704, Mr Brady's next door neighbour and the only other owner proximate to the affected area, was not called nor did the OC produce evidence of any impact upon his amenity, safety or comfort.
   • (e) The OC has not presented any evidence that the door affects any services on or near that section of the wall nor any evidence that it impacts on any insurance considerations.
2. I find that the installation of the door on the common property wall has no or little impact on any lot owner other than Mr Brady. I am also satisfied that the proposed reinstatement of the wall to its pre-doorway condition will have little to no impact on any lot owner other than Mr Brady. The OC adduced no evidence to establish that the installation of the doorway:
   • (a) affects any other lot owner;
   • (b) causes a hazard to the health, safety or security of any other lot owner; or
   • (c) obstructs the lawful use and enjoyment of the property.

I consider it unlikely that the proposed resolution will have any impact on the other lot owners as a whole.

Whether a resolution or proposed resolution is oppressive to, unfairly prejudicial to or unfairly discriminates against, a lot owner or lot owners.

1. In circumstances where the proposed resolution will have little or no impact on any other lot owner, I consider the reinstatement of the door to be oppressive and unfairly prejudicial to Mr Brady.
2. Mr Brady consulted openly and at length with the parties authorised to deal with the building defects. Mr Pezzi and Mr Smith, acting in their capacity as members of the Building Sub-committee, verbally and by implication assured Mr Brady that he could proceed with the installation of the door. Mr Brady acted on those assurances and, at a cost to him of $3000 to $4000, installed what is widely accepted as a structurally sound doorway. I consider it unfair to require him to reinstate the wall to its pre-doorway condition in circumstances where there will be little or no impact on the lot owners as a whole.

1. Photographs of the affected area show a discrete and well-made door. It is flush with the wall and painted the same colour. Mrs Addyman's own evidence is that the members of the OC Committee who have seen it describe it as "a good job...it was well done". On the photographic evidence presented, I am satisfied that the door is very well made and aesthetically compatible with the surrounding structures and the building as a whole.
2. The OC presented no evidence that the door is visible to the public from street-level or that it affects the external appearance of the building. I find that very few people will ever have cause to see the door, given its location in a rarely used part of the building.
3. Finally, I am satisfied that the door and doorway are structurally sound. The OC adduced no evidence that the installation of the door has structurally compromised any part of the common property wall. Mr Brady presented the report he commissioned from Rincovitch Consultants. Its conclusions as to the structural soundness of the installation were not challenged by any evidence to the contrary and therefore remain the best evidence before me of the structural integrity of the installation.

1. I find that both the OC and Mr Brady found themselves in a predicament not of their making. They were presented with the overwhelming task of having to deal with extensive building defects and a difficult and reluctant builder. I am satisfied that both the OC, through the members of its Building Sub-committee, and Mr Brady adopted a mutually acceptable and expedient approach that suited them at the time to facilitate the commencement of defect works by Hansen and Yuncken.
2. Having considered:
   • (a) the conduct of the parties;
   • (b) their acts and omissions;
   • (c) the impact of the proposed resolution on the lot owners as a whole;
   • (d) whether the proposed resolution is oppressive to or unfairly prejudicial to any lot owner; and
   • (e) the aesthetic appearance and structural soundness of the door;

I find on balance that it is unfair to now require Mr Brady to reinstate the common property wall to its pre-doorway condition, and so it is fair not to make any of the orders sought by the OC.

1. Accordingly, I dismiss the OC's application.
2. I further order that the respondent has leave to make an application for a costs hearing no later than 17 May 2018. In doing so I am not encouraging him to make such an application, merely reserving his right to make one.

[5] Applicant's Submissions dated 9 March 2018 p. 7.

[6] Applicant's Submissions dated 9 March 2018 p. 13.

[7] Respondents Submissions dated 23 March 2018 p. 3.

[8] Applicant's Submissions dated 9 March 2018 p. 5.

[9] Carmignani v Owners Corporation No 1 PS 349389V [2016] VCAT 2155.

[10] Applicant's Submissions dated 9 March 2018 p. 3.