1. On 4 December 2025, I delivered oral reasons in these proceedings.
2. On 5 December 2025, the solicitor for the owners corporation requested written reasons.
3. These written reasons accord with the oral reasons delivered on 5 December 2025 save for necessary grammatical and clarity amendments.

1. These proceedings were identical in form and content to proceedings OC607/2023and OC1568/2023 which were withdrawn by order dated 11 July 2024. VCAT granting leave for each applicant to withdraw. In the hearing the parties indicated that there were apparently irregularities regarding the fee notices. After hearing from the parties (and there being no objection from either party) I exercised my discretion under s 74(2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') and granted leave to each party to continue with their respective applications.
2. Mrs Valerie Boyd died in October 2024. I accepted the evidence of Mr Boyd in this regard. There are two applications before the Tribunal. Having considered the evidence of Mr Boyd and having now considered the relevant copies of the Certificates of Title for Mr Boyd's garage lots, I am satisfied that the relevant Certificates of Title were in the joint names of Valerie and Peter Boyd. Upon the death of Valerie Boyd, Peter Boyd became the sole owner of the garage lots referred to in the Certificates of Title by way of survivorship. No Probate application was required concerning the interest of Valerie Boyd in the garage lot titles. The final fee notice issued in November 2024 is not defective due to Valerie Boyd's death. There was discussion whether Mr Boyd had notified the manager of Owners Corporation Plan No. RP006278 (the 'OC') of Valerie Boyd's death which may have had impact on the name of the respondents. However, the inclusion of Valerie Boyd is not fatal to either application and is simply remedied by an amendment pursuant to s 60 of the VCAT Act.
3. In both proceedings I made formal orders on 17 July 2025 granting leave for each application to continue and deleted the late Mrs Boyd from Mr Boyd's application.
4. There are two applications before the Tribunal. OC1565/2024 is the OCs application for unpaid fees ('the OC's proceeding') and OC385/2025 being Mr Boyd's application seeking orders to reject the setting of fees for the driveway work pursuant to the 'benefit principle' under s 24 of the Owners Corporations Act 2006 (Vic) ('OC Act') ('Mr Boyd's proceeding').
5. In the Tribunal's order made in Mr Boyd's proceeding dated 23 April 2025, the background indicates that Mr Boyd's proceeding is broadly in similar terms to the Points of Defence filed in the owners corporation proceeding. Having regard to that background Senior Member Johnson determined that no further documentation was required by Mr Boyd in Mr Boyd's proceeding presumably on the basis that his position would be covered by the material filed by way of defence and in his application.

1. The Plan of Subdivision shows that the property is bounded on three sides by roads. On the northern side of the property the road is Sandown Avenue. On the southern side of the property the road is Mytton Grove. On the eastern side of the property the road is St Kilda Street.
2. There are 29 lots in the subdivision. Lots 12 to 29 ('the garage lots') are accessory units, and it would seem (from the photographs) that there are garages each with roller doors constructed on each of those accessory units. These garage lots are located and sorted in two rows near the Sandown Avenue entry, with 9 garage lots on the western boundary and 9 garage lots on the eastern boundary. There is an inverted L shape building in approximately the mid-point of the subdivision. The long part of the 'L' contains 9 lots over 3 levels and the short part of the 'L' contains 2 lots (lots 11 & 7) over 3 levels. A stairway is located between the long and short part of the 'L.' Lot 11 being the lot facing Mytton Grove includes the land area shaded on the plan and is located over two levels being the ground and first storey. Lot 7 is in the topmost storey level. Lots 1 to 11 are dwelling lots ('dwelling lots')
3. Lots 1-10 are included in a grouping of lots regarded as 'restricted lots' meaning the registration of dealings with the lots 1-10 is restricted. No such restriction appears to apply to the garage lots. Lot 11 is neither a garage lot nor a restricted lot.
4. Mr Boyd owns 3 garage lots. He does not own a dwelling lot. Mr Boyd explained that some of the other owners of the garage lots also do not own a dwelling lot. The fact that Mr Boyd owns garage lots without a dwelling seems to be an historical quirk when some dwelling lot owners did not wish to own garages. I assumed that Mr Boyd was simply 'left with' these garage lots.
5. There is a concrete driveway between the two rows of the garages. It is the driveway works and the fees pertaining thereto which form the dispute between the parties in relation to the OC's proceeding and Boyd's proceeding.

1. The sum of $9,659.71 is owed by Mr Boyd (which the OC submitted includes $190.00 standard levy and the balance being the special or driveway levy).
2. Interest was also owed from the date of the Final Fee Notice.
3. Costs would be sought at Tribunal's discretion however, $2,148.70 had been calculated as costs to the date of the hearing.
4. The details contained in Summary of Proofs ('SOP') was declared to be correct pursuant to the statutory declaration signed by the OC manager Joseph Ojaimi.
5. The OC's proceeding claimed $11,466.64.
6. The SOP asserted the claim was $11,381.44 plus interest.
7. Ms Panayiotou, solicitor for the OC, said the claim had been reduced due to payments made, but no updated SOP was filed nor was an updated ledger filed.
8. At the Annual General Meeting held on 15 July 2022 a special levy of $59,000 was struck for 'concrete and drainage replacement works'. It was resolved that a letter of legal advice be obtained 'regarding legal boundaries, obligations and cost apportionment' but limited the scope to 'garages and common concrete area on the north side of the property' (which according to the Plan of Subdivision would be the concrete areas appurtenant to the garages).
9. The "Benefit principle" was applied by the OC committee regarding the driveway works.
10. No witness was called by the OC. The Chair of the committee was not called to give evidence, nor for that matter was any other member of the committee to provide evidence as to the process followed by the committee when deciding to apply the "benefit principle".
11. The OC relied on a document titled 'OC Committee benefit principle application summary' which is undated and unsigned and attached to the SOP.
12. The OC manager's email (attached to Mr Boyd's documents) dated 15 December 2022 was submitted as an explanation of the process adopted by the committee.
13. The OC maintained that the use of Sandown Avenue entry was only by garage owners. There is another entry point for dwelling lots. No one provided this evidence - it was a statement made by the solicitor (Ms Panayiotou) appearing for the OC.

1. Mr Boyd submitted that his application sought an order 'removing the benefits principle from the levy and an order removing the chair from the committee.'
2. Mr Boyd submitted that the benefit principle should not be applied. The cost[1] should be apportioned on a lot liability basis.
3. Mr Boyd relied upon:

(a) The letter from CPL lawyers to the OC dated 19 September 2022.

(b) The email from the OC manager to all lot owners dated 15 December 2022.

(c) The letter (being document 5a in Mr Boyd's bundle) from Boyd (and others) to the OC manager requesting driveway work costings and raising issues regarding the application of the benefit principle.

(d) The response from the OC manager dated 13 February 2023 which 'pasted in' a response from the OC Committee and apparently sent to the OC manager on 1 February 2023.

1. Mr Boyd submitted that the Sandown Avenue entry and concrete driveway is used by all lot owners and delivery vehicles. He said it is the main entry point. He produced photographs of vehicles including delivery and service vehicles parked on the concrete driveway area.

1. In the minutes of the Annual General Meetings of 2022, 2023 and 2024 concern is raised as to the OH&S issues about the 'driveway paving'.
2. S24 of the OC Act provides:

(1) An owners corporation may levy special fees and charges designed to cover extraordinary items of expenditure.

(2) Subject to subsection (2A), the fees and charges must be based on lot liability.

(2A) Fees and charges for extraordinary items of expenditure relating to repairs, maintenance or other works that are carried out wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation must be levied on the basis that the lot owner of the lot that benefits more pays more.

1. The provisions of s 24 were amended by the Owners Corporations and Other Acts Amendment Act 2021 (Vic).
2. These amended provisions apply to this dispute because the decision by the OC committee to levy the driveway fees was made after the commencement of those amendments.
3. The decision of Owners Corporation PS407621Y v Grundl [2017] VCAT 1550 ('Grundl') provides insight and direction as to how a tribunal may approach the situation when requested to consider the decision of an OC to apply the benefit principle.
4. In Grundl SM Vassie stated at [16]:

In my view, in the light of the Mashane decision on appeal and of s 24 as it now is, the law requires an owners corporation to act as follows when it sets special fees to cover extraordinary items of expenditure relating to repairs, maintenance or other works.

1. It must first turn its collective mind to the question of whether all lots benefit substantially from the works or whether some lots substantially benefit more than others.
2. If, acting in good faith and exercising due care and diligence, as s.5 of the Act obliges it to do, it decides that all lots substantially benefit, it must set fees in accordance with lot liability. There will be no legal error in the decision, and the Tribunal will not interfere with it on the application of an aggrieved lot owner, unless the decision was one which no members of an owners corporation, acting honestly and reasonably, could have made.
3. Failure to turn the collective mind to the question is a legal error. The error is unlikely to lead the Tribunal to interfere, on the application of an aggrieved lot owner, with a decision to set fees in accordance with lot liability if in reality all the lots benefit substantially from the works. Otherwise the legal error exposes the owners corporation to the risk that the Tribunal will declare the resolution invalid.
4. If the owners corporation decides that the works are substantially for the benefit of some, but not all, of the lots, it must set fees not in accordance with lot liability but in accordance with the benefit principle, so that the owner of the lot that benefits more pays more.
5. The owners corporation must decide the extent to which the various lots benefit and apportion the fees accordingly. In making the decision it must act in good faith and with due care and diligence. If it does, there will be no legal error in the decision, and the Tribunal will not interfere with it on the application of an aggrieved lot owner, unless the decision was outside the range of reasonableness so that it was one which no members of an owners corporation, acting honestly and reasonably, could have made, or unless there has been some other legal error.
6. However, if the lot owners cannot decide which principle to adopt or cannot decide upon the proper apportionment, and ask the Tribunal to decide, the Tribunal may do so.
7. Except in a case of urgency,[6] there must be a special resolution for levying the amount of the extraordinary expenditure if it is more than twice the amount of the current annual fees.

1. The concern expressed in the annual general meetings relates the OH&S issues and the need to repair (presumably) to avoid exposure for potential injury claims. That is a risk which falls on every lot owner and not simply the garage lot owners.
2. In this decision, without the benefit of direct evidence from the committee, the evidence seems to be that the OC committee turned its mind only to the benefit principle. There is no note or recording of lot liability under s 24(2) being considered, which in my opinion would seem to be the (logical) starting point.
3. Whilst the response from the OC manager dated 13 February 2023 to Mr Boyd's letter[2] may provide some explanation as to the process followed, there seemed to be a thought process (and to an extent this is emphasised in the 2022 minutes regarding the restriction to the scope of advice to be sought from the solicitor) that the benefit principle applied at the outset.[3]
4. I cannot be satisfied that the committee has considered the lot liability starting point. It seems to have determined that the benefit principle applied without having regard to the fact that lot liability may have applied.
5. There may therefore have been a failure of the committee to turn its collective mind to lot liability as a starting point and whether the benefit principle ought to be adopted - and that for the most part is due to the absence of evidence.
6. SM Vassie's comments in Grundl at [17] are helpful. SM Vassie stated that (in relation to) a submission, that 'the benefit principle will not apply if all lot owners benefit'. Is not accepted. Further SM Vassie stated that "It is inconsistent with the decision in Mashane Pty Ltd v Owners Corporation RN328577 (Owners Corporation) [2013] VCAT 118. Moreover, the phrase 'the lot owner of the lot that benefits more pays more' in s 24(2A) shows that the sub-section is concerned with comparative benefits to lots as well as with a case where a lot derives no benefit." I adopt and accept these statements as being the correct interpretation of the operation of S24(2A) .
7. In this matter all lots derive some benefit. They all benefit from the driveway repairs. They all benefit by having a properly repaired driveway, which is used by a variety of people, including tradesmen, garage users, and visitors. Any OH&S issues are resolved by undertaking the repairs.
8. The repair of the driveway did not solely benefit the garage lot owners.
9. The repair benefitted all lot owners to some degree, by protection against potential claims, by providing proper access, by visual aesthetics and garage access.
10. Even if I am wrong regarding the lack of proper consideration by the committee of lot liability as a starting point, the application of the benefit principle to levy these expenses only against the garage lot owners, where all lot owners derive some benefit is a decision which no member of the OC, acting reasonably and honestly could have made.
11. I am satisfied that the driveway area is not used exclusively by the garage lot owners. I am satisfied that other vehicles enter and use this area. I am satisfied that although another entry point off St Kilda Street may exist, this entry point does not allow the entry of vehicles. Service and tradesman vehicles, visitors' vehicles, and taxis use this concrete driveway area. I am satisfied that persons 'on foot' also traverse this area. To say otherwise would be contrary to the OH&S concerns noted in the various Annual General Meeting minutes. The statement that but for the garages there would be gardens is irrelevant. The fact is there are garages. They are part of the Plan of Subdivision. They are lots within the Plan of Subdivision.
12. In the words of SM Vassie 'the decision was outside the range of reasonableness so that it was one which no members of an owners corporation, acting honestly and reasonably, could have made.'
13. The application of the benefit principle which disregards the 'benefit' of all lot owners in relation to OH&S issues and potential claims was wrong. The apportionment applied by the committee was unreasonable.
14. In Mr Boyd's proceeding I will make an order declaring that the decision made by the OC prior to the issue of the fee notice dated 15 December 2022 under s 24(2A) to apportion the concrete driveway works in the manner it did was wrong.
15. Consequently, the bulk of OC's proceeding will fall away. The solicitor for the OC, Ms Panayiotis stated that the non- concrete works portion of the amount outstanding being standard levy was $190.00. However, no updated ledger or Summary of Proof was filed and therefore, I cannot be satisfied as to how this amount has been calculated. There is insufficient evidence. In the OC's proceeding I will make an order dismissing the application.
16. The only other aspect of Boyd's proceeding relates to his request for an order to 'remove the committee chair.' Mr Boyd considered that the chair had been 'vindictive' and 'unreasonable' 'over this matter.' He also gave a hearsay account about an apparent issue of the chair concerning a tenant's outdoor 'rail' and abuse towards tradespeople. He admitted it was hearsay. He could not be sure of the Chair's name.
17. Mr Boyd has not provided any adequate evidence as to why I should make an order removing the chair. The fact that the chair may have been involved in a committee decision to adopt a particular apportionment under s24 is insufficient reason. I will not make an order in relation to the chair.
18. In a recent decision of Bradley Scott Schembri Furniture Finishes Pty Ltd v Owners Corporation No. PS334220X (Owners Corporations) [2025] VCAT 298. SM Moraitis said:
    1. Grundl makes it clear that, when the OC has not done so, the Tribunal may examine the relevant facts and assess the benefit of the works to each lot. The failure of the OC to turn its collective mind to benefit means that the Tribunal has the power to consider whether all lots benefitted substantially from the works, whether some lots substantially benefitted more than others and, if so, the extent to which each lot benefitted. The Tribunal is also empowered to decide upon the proper apportionment of any special fees or charges.
19. The decision to decide on a proper apportionment is not therefore mandatory where there is a defect in the process as outlined in Grundl or a finding that the OC's decision was unreasonable.
20. In this matter I have found there is a defect in process and certainly a determination that the OC's decision was unreasonable. I consider that it is a matter for the OC to determine the proper apportionment of liability for the concrete works, and whilst that may spawn another application, I consider that the OC may be in the best position to undertake this process.
21. The orders I will make are as follows:

The Tribunal declares that the determination made under S 24 2A by the OC prior to the issue of the fee notice dated 15/12/2022 to apportion the concrete driveway works in the manner set out in the fee notice was wrong. Any fees levied against the applicant based on that determination must be withdrawn.

[2] Being the letter referred to in p29 (c).

[3] See the undated "Benefit principle" document attached to the SOP.