Plaintiff v Defendant

...

1. By 31 January 2025, pursuant to s 166 of the Owners Corporations Act 2006, Ms Fang must pay to the owners corporation a Civil Penalty of $2,371.08 in respect of the breaches.[1]

1. Although the proposed appeal does raise questions of law, I have concluded that none have a real prospect of success as required by s 148(2A) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) so as to obtain leave to appeal. For the reasons that follow leave to appeal is refused.

1. A hearing was conducted during which six lay witnesses and five expert witnesses gave evidence. Following this, written final submissions were provided and on 10 January 2025 the Tribunal published written reasons accompanying the orders.
2. A number of matters in dispute had been resolved by agreement. By the hearing, the remaining questions relevant to the orders for which leave to appeal is sought, were identified by the Tribunal as:

(a) Has Ms Fang acted in breach of the requirements of the Owners Corporations Act 2006 (Vic) ('OC Act'), in respect of the CCTV cameras, the awning and the air conditioning unit?

(b) Were the breach notices in contention [in respect of the CCTV cameras, awning and air conditioning unit] validly issued by the Owners Corporation in accordance with the requirements of the OC Act?

(c) Should Orders be made requiring Ms Fang to remove the CCTV cameras, the awning and the air conditioning unit?

(d) Are there grounds for the imposition of civil penalties? [2]

1. In summary the Tribunal answered these questions as follows:

(a) Yes.

(b) The breach notices were valid in respect of the air conditioning and the CCTV cameras but invalid in respect of the awning. The final breach notices were all invalid.

(c) Yes.

(d) Yes.

1. In its reasons, the Tribunal set out the relevant requirements of the OC Act including the Model Rules set out in Schedule 2, and addressed the question raised by the first issue. The Senior Member said:
   1. The evidence of the parties in relation to each of the installations is that Ms Fang did not seek the written approval of the owners corporation as contemplated by Rule 5.2. Rather, in each case, Ms Fang sent emails in which she announced her intention to carry out the works. Ms Fang submits that, in notifying the lot owners and the manager in this way, she was entitled to assume, if there was no response from the lot owners, that they acquiesced in her proposed course of action.[3]
2. Thereafter the Senior Member set out the specific evidence in relation to each of the awning, CCTV cameras and air conditioning unit. In each case the Tribunal was satisfied that Ms Fang had not complied with the OC Act and Model Rules. The Tribunal finally concluded:
   1. I am satisfied that Ms Fang understood the obligations placed on her, as a lot owner, by the OC Act. I am satisfied that she chose to behave in a manner that was inconsistent with the obligation of the owners corporation to give consideration to the issues of quiet enjoyment, structural integrity of lots and common property, and value of lots and common property. I am satisfied that, in the installation of the awning, the CCTV cameras and the air conditioning unit, Ms Fang was in breach of the requirements of the OC Act.[4]
3. Turning to the second issue, namely the validity of the breach notices issued by the OC, the Senior Member identified three notices that were issued to Ms Fang on 28 March 2022.[5] The validity of all three breach notices was in issue. The Tribunal outlined in the statutory scheme and set out the procedures where breaches of the OC Act, regulations or Model Rules are alleged. Section 153(2) of the OC Act requires a formal decision to be taken by the OC in respect of an alleged breach. Ms Fang alleged that no formal decision had been made. Under the statute a formal decision can decide to follow one of three paths: it can be a decision to take action under Part 10; a decision to apply to the Tribunal for an order rectifying a breach; or a decision to take no action. As to the breach notices, the Tribunal concluded in its Reasons:
   1. ... I find that the resolutions passed at the 24 August 2021 Annual General Meeting in relation to the CCTV Cameras and the air conditioning unit amount to decisions to take action in accordance with s 153(2)(a) of the OC Act.
   2. The breach notice dated 30 March 2022 issued in respect of the awning was not the subject of a decision of the owners corporation. As a consequence, the procedure set out in s 153 of the OC Act was not followed in the giving of that breach notice and final breach notice.
   3. Accordingly, I find that the breach notices relating to the CCTV Cameras, and the external split system air conditioning unit, are valid, but the breach notice relating to the awning is void and ineffective.[6]
4. A decision to issue a breach notice is not dependent upon receipt of a complaint about a breach, although a formal complaint may be made under s 152. A breach notice may be issued where an alleged breach has 'come to the notice' of an owners corporation.[7] The complaints made to the OC in approximately August 2022 had been made subsequent to the issue of the breach notices. The Tribunal concluded they were irrelevant to the question of validity.
5. However, the complaints were relevant to the final breach notices dated 2 November 2022. This was because the final breach notices incorporated aspects of the complaints in the description of the breaches. The Tribunal found that two of the final breach notices failed to describe the actions required of Ms Fang and raised new issues. The Tribunal said concerning the air conditioning:
   1. It is doubtful ... that the Final Breach Notice relating to the air conditioning unit was effective. It does not direct Ms Fang to remove her air conditioning unit. The description of the breach does not describe the manner in which the Rules referenced in the Form have been breached. It introduces a new issue that was not included in the Breach Notice.....[8]
6. A similar shortcoming was found in the final breach notice concerning the awning.[9]
7. The Tribunal concluded the Final Breach Notice concerning the CCTV cameras suffered from a different defect. Namely, the loss of privacy and the negative impact upon the quiet enjoyment of other lot owners caused by the installation of the CCTV cameras as found by the Tribunal, could not amount to the 'obstruction' of the lot owners' lawful use and enjoyment of common property. Accordingly, the evidence was insufficient to find a breach of the Model Rules.
8. Therefore all three final breach notices were held to be invalid.
9. The third issue for determination was whether orders should be made that Ms Fang relocate or remove the installations. This required the Tribunal to address Ms Fang's application that it exercise its discretion under s 164 of the OC Act to dismiss or strike out the OC's application on the basis that it had not complied with its procedural obligations under s 153. If this application was not granted, the Tribunal was still required to decide what, if any, relief to order under s 165 of the OC Act.
10. The Tribunal did not explicitly record a decision on this application. However, it is apparent it did not exercise its discretion under s 164 of the OC Act, despite its findings of non-compliance with the procedural requirements of s 153. Rather, it proceeded to determine the OC's application on its merit. This course of action is seen from paragraphs 102 and 103 and its reference to s 164, where the Tribunal said:
    1. Section 164 of the OC Act gives a discretion to the tribunal to make an order dismissing or striking out and application for an order requiring the rectification of an alleged breach, if the Tribunal is satisfied that the owners corporation has not complied with s 153 of the OC Act. Ms Fang submits that I should find that the owners corporation has not complied with s 153 of the OC Act. As I have noted above, s 153 of the OC Act requires that the owners corporation must decide whether to take action to issue breach notices, whether to apply to VCAT for an order requiring the person to rectify the alleged breach or to take no action. I have found that there was no decision by the owners corporation to issue breach notices relating to the awning.
    2. Even absent a resolution of the owners corporation authorising the giving of breach notices, it does not necessarily follow that the owners corporation's application for orders requiring rectification of the alleged breaches should be dismissed or struck out. The Tribunal's power is discretionary, not obligatory. Further, in making any order under the OC Act, s 167 of the OC Act requires that I consider the conduct of the parties, and any act or omission of a party. [10]
11. Then, in relation to the OC application for relocation or removal of the installations, the Tribunal set out its reasons and concluded as follows:
    1. I find that the installation of the CCTV cameras by Ms Fang was not carried out in accordance with the requirements of the OC Act and the Model Rules, and, further, was implemented without regard to the proposal that Ms Fang had put to the owners corporation.

109 It is appropriate to order Ms Fang remove the CCTV cameras.

1. In all the circumstances, I consider that it is appropriate to order Ms Fang to remove the air conditioning unit from its present location, and relocate the unit so that it is not visible from outside her lot.

1. It is appropriate that I order Ms Fang to remove the awning.[11]
2. Finally, on the issue of a civil penalty, the Tribunal set out the relevant principles under s 166. The Senior Member recorded that Model Rules 5.1 and 5.3 were valid and binding upon Ms Wang, who had failed to comply with them. The Senior Member then turned to matters in s 167 of the OC Act and addressed those matters before asking:
   1. Is it appropriate to impose a civil penalty of $1,100 in respect of each of the three breaches of the Model Rules? I note that s 166 provides that a civil penalty "not exceeding $1,100" may be imposed.[12]
3. For reasons outlined at paragraphs 139 to 142, the Tribunal concluded:
   1. I consider that it is appropriate to impose a civil penalty equivalent to 4 penalty units for each breach, $790.36 x 3 a total of $2,371.08.[13]

C The proposed Appeal and the relevant statutory provisions

1. The Amended Notice of Appeal lists 28 questions of law and grounds of appeal. Notwithstanding this somewhat daunting first impression, the proposed appeal essentially raised six questions. They are:

(a) in making an order under s 165 of the OC Act, the Tribunal failed to consider, or make a finding, that it was 'fair' to make the order for removal or relocation of the installations (questions of law and grounds 1 to 6);

(b) in making the orders to remove or relocate the installations, the Tribunal failed to have regard to the conduct of the owners corporation, as required by s 167 (questions of law and grounds 7 to 12);

(c) the Tribunal erred in law in finding that the owners corporation had complied with s 153(2) in respect of the installation of the air-conditioning and CCTV and therefore erred in ordering their removal (questions of law and grounds 14, 15, 26 and 27);

(d) the Tribunal failed to rule or give any adequate reasons for refusing Ms Fang's application for summary dismissal or strike out of the OC application under s 164 of the OC Act (questions of law and grounds 13);

(e) the Tribunal failed to give any adequate reasons for the orders to remove or relocate the installations (questions of law and grounds 16 to 18); and

(f) the Tribunal erred by making an order that Ms Fang pay a civil penalty under s 166 without considering the conduct of the owners corporation under s 167 (questions and grounds 19 to 23, 28).

1. Questions 24 and 25 were not pressed by Ms Fang.[14]
2. Section 153 of the OC Act governs the steps that must be taken by an owners corporation concerning alleged breaches of the OC Act or Rules. It is found in Part 10: 'Dispute Resolution', within the provisions dealing with complaints and procedures. The provision states:

S 153 Decision whether to take action in respect of alleged breach

(a) a complaint is made under section 152; or

(b) it otherwise comes to the attention of the owners corporation that a lot owner or an occupier of a lot or a manager may have breached this Act or the regulations or the rules of the owners corporation.

(a) to take action under this Part in respect of the alleged breach; or

(b) to apply to VCAT for an order requiring the person to rectify the alleged breach; or

(c) to take no action in respect of the alleged breach.

(3) An owners corporation must not take action under this part or apply to VCAT for an order in relation to a complaint made under section 152 unless -

(a) the dispute resolution process required by the rules has first been followed; and

(b) the owners corporation is satisfied that the matter has not been resolved through that process.

1. Sections 165 to 167 are found in Part 11: 'Applications to VCAT', within the provisions dealing with 'Owners corporation disputes'. They set out the powers of the Tribunal to make orders in disputes brought before it. They 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 or the regulations or the rules of the owners corporation;

If VCAT determines that a person has failed to comply with a rule of the owners corporation that imposes an obligation that is binding on the person, VCAT may make an order imposing a civil penalty not exceeding $1100 to be paid to the owners corporation.

(1) VCAT in making an order must consider the following -

(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;

D.1 Grounds 1 to 6: Did the Tribunal decide what orders were 'fair"?

1. The Tribunal is given power by s 165 to make any order it considers fair when determining disputes arising under the OC Act. Although is a wide discretion, it is one to be exercised judicially.[15]
2. The plaintiff's submission is that the Tribunal failed to make 'a finding' that the removal of the installations was 'fair'. Such a finding, she submits, was a 'condition' of, or 'essential to', the power to make such an order. In finding that the order was 'appropriate', the wrong legal test was applied. To put it another way, what was fair was a mandatory consideration and required a finding on the Tribunal's part_._
3. The submission relies upon cases considering the power in s 109(3) of the VCAT Act to order costs as analogous, and so informing the interpretation of s 165 of the OC Act. Section 109(3) provides power to make a costs order 'only if satisfied that it is fair to do so'.
4. The defendant submits that as a discretionary matter, the relevant standard of review is as stated in House v The King,[16] that is, review should occur where the trial judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistook the facts or overlooked some material consideration.[17] While the Tribunal did not expressly state that it was fair to make the order, saying it was 'appropriate to do so', the plaintiff's approach takes an overly legalistic, 'pernickety,' approach to the reasons. It is inherent and implicit in the reasons read as a whole that the Tribunal considered it fair to make the orders it did.[18]
5. The defendant submits that, even if the word 'appropriate' is not synonymous with 'fair', the question should be answered by looking to the substance of the evaluation made by the Tribunal in making the order. In other words, had the Tribunal used the word 'fair' rather than 'appropriate' is the order in substance shown to be fair.
6. The analogy with s 109(3) of the VCAT Act in my opinion has limitations. It is a comparison drawn between the use of the word fair used in different statutes and contexts. Section 153 of the OC Act is concerned with orders resolving the substantive dispute as to rights and liabilities of the parties. Section 109(3) of the VCAT Act is concerned with the costs consequences of the outcome in a proceeding and not the substantive dispute. In each a list of mandatory considerations is provided: in s 167 OC Act and s 109(3)(a)-(e) of the VCAT Act. While the text or word 'fair' is the same, context and purpose are not.
7. In the context of the power to order costs, the Tribunal has said 'I see Parliament using "fair" in s 109 as meaning "just or appropriate in the circumstances"'.[19] This statement of the meaning to be attributed to the word 'fair' is generally unexceptional. Its key lies in the qualification of the circumstances in which the word is used. The costs discretion is qualified by the particular context of s 109 so the usefulness of cases addressing that discretion is limited. The discretion given to the Tribunal by s 109(3) is to depart from the statutory position that each party bears their own costs. An order that a party pay the costs of another party represents a departure that can occur 'only if satisfied that it is fair to do so'[20] having regard to the various matters set out in s 109(3). Those matters relate principally to the way in which the proceeding itself has been conducted rather than the substantive rights and obligations in dispute.
8. The cases relied on by Ms Fang as analogous, including Vero Insurance Ltd v The Gombac Group Pty Ltd,[21] consider what is required for the Tribunal to depart from the general rule concerning costs. In those circumstances, satisfaction by the Tribunal that it is 'fair' to do so is essential, for it is only when so satisfied that a discretionary costs order may be made.
9. In Energy Technology Australia Pty Ltd v Owners Corporation PS 439401J (ETA),[22] which Ms Fang also relies on, Daly AsJ specifically considered the power under s 165 of the OC Act. In that matter Energy Technology Australia submitted that the Tribunal failed to consider whether the order it made under s 165 was fair, and in so doing failed to make an essential finding. The Court concluded that reliance on the 'broad facilitative provisions such as s 165 of the [OC] Act' cannot be relied on to make orders the effect of which was to abrogate the right to control entry to private property in the absence of a clear statutory provision to do so.[23] It did not conclude that 'fairness' was an essential finding. In other words, ETA stands for the proposition that s 165 does not empower the Tribunal to make an order that is not based upon common law or statutory rights and obligations of the parties, saying that the power to make an order that is fair 'does not empower the Tribunal to act at large'.[24]
10. The discretion in s 165 of the OC Act is not a discretion to depart from a statutory position, and so is not a discretion exercised 'only' when satisfied of certain matters. In its common or ordinary meaning fair is something that is reasonable, right, equitable or just.[25] The types of orders listed in s 165(1)(a) to (l) illustrate the breadth of the power. It is to make an order that achieves a substantive outcome that is fair in the sense of reasonable, right, or just. It is mandatory for the Tribunal to have regard to the matters in section 167. Therefore whether or not an order is considered 'fair' by the Tribunal must be discerned not by whether the Tribunal member uses the word fair, but by whether in substance the order fairly reflects a resolution of the dispute based upon the Tribunal's findings of fact and application of relevant legal principles.
11. A Tribunal makes findings of fact in order to determine a matter in dispute. I do not accept the circular submission that the Tribunal was required, but failed, to make 'a finding' that an order was fair, in order to make the order it considered fair.
12. In using the word 'appropriate' the Tribunal echoes the meaning of fair as being 'just or appropriate' as described by the Tribunal in Filippou Management Pty Ltd v MREEF Project Company No 11 Pty Ltd & Ors (No 2) (Civil Claims).[26] In the present matter, reading the reasons as a whole, the Tribunal did consider the orders fair, based upon its findings including those as to conduct of both parties. The question of the Tribunal's consideration of conduct of the parties, as required by s 167 of the OC Act is considered in detail under the next grounds.
13. The Tribunal did not apply a wrong legal test and grounds 1 to 6 disclose no error of law.

D.2 Grounds 7 to 12: Did the Tribunal fail to have regard to the conduct of the OC as part of the mandatory considerations in s 167 of the OC Act?

1. These grounds are related to the earlier grounds in that they are part of the argument that the Tribunal's orders failed to consider, as is mandatory, the matters in s 167 in determining what order is fair. Relevantly, the plaintiff submits that the conduct of the OC concerning the dispute was not considered, in particular the conduct in failing to comply with Part 10 of the OC Act, and the requirement to comply with s 153.
2. The plaintiff's submissions rely on Owners Corporation 1 PS611240X v Brady (Owners Corporation)[27] (Brady) where the Tribunal concluded:
   1. The [OC] Act confers on the Tribunal broad and discretionary powers to resolve disputes in circumstances where technical breaches of the rules have occurred...
   2. 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 discretionary language ("may") and the only provision expressed in mandatory terms ("must") is section 167.

1. It follows therefore that the Tribunal may make any order it considers fair and in doing so must consider the factors outlined in s 167. The discretion to make any order the Tribunal considers fair includes a discretion not to make any order at all...
2. In Brady, the OC sought orders under s 165 of the OC Act that Mr Brady reinstate the condition of a wall having failed to obtain OC permission to install a door. The Tribunal made a number of factual findings concerning the absence of written approval, the sufficiency of a subjective belief as to approval and other matters necessary to determine the dispute and did not to order rectification given the factual findings as to conduct of both parties who 'adopted a mutually acceptable and expedient approach'.[28] The plaintiff submits that Brady is relevant because it demonstrates that the OC conduct including procedural conduct must be considered.
3. The plaintiff submits that despite reciting the requirements,[29] the Tribunal did not expressly refer to matters or made findings as to the matters raised by s 167. In Ms Fang's submission the focus of the relevant conduct is that of the OC in failing to issue valid breach notices and final notices, and in the case of the awning, failing to make a decision under s 153 at all. Further, in relation to the CCTV cameras, the OC resolution did not require removal but reorientation, and this change should have been, but was not, a matter considered by the Tribunal. These matters were relevant conduct that were not considered.
4. The defendant submits that 'procedural conduct' is not conduct contemplated by s 167 when making an order under s 165. In any event, even if it is contemplated, it was irrelevant to the relocation or removal of the installations. The plaintiff made no specific submission before the Tribunal about how the procedural invalidity should be considered on the question of what constitutes an order that is fair. The defendant submits that, read as a whole, the Tribunal's reasons demonstrate the it was aware of its task and approached it consistent with its statutory mandate.
5. In my view it is clear from the recitation of s 167 in paragraph [103] of the Reasons that the Senior Member was aware of the requirement to consider the conduct of the parties. She set out the procedural conduct at some length in reaching conclusions as to the validity of the notices. This conduct included matters prior to issue of VCAT proceedings by Ms Fang on 12 January 2023 and the OC on 23 September 2023, which are discussed in some detail in the reasons.
6. I accept that matters of conduct can include procedural matters. The existence of a procedural irregularity does not deprive the Tribunal of jurisdiction[30] nor is it necessarily determinative itself of fairness or unfairness. It is part of the factual matrix that must be considered when making an order that is fair. Conduct encompasses both acts and omissions.[31] In Brady, the Tribunal rejected the owners corporation argument that Mr Brady's procedural non-compliance gave rise to the OC having a 'right' to an order for reinstatement describing such an approach as one that is artificially narrow.[32]
7. I reject Ms Fang's general submission that OC conduct was not considered in the exercise of discretion under s 165. The absence of an express statement that it has done so, must be read both in the context of the reference to the obligation to do so, and the discussion of both OC procedural conduct and the nature of OC dealings with Ms Fang.
8. Procedural conduct was a substantial basis of Ms Fang's own application for relief against the owners corporation, and the invalidity of the notices was a specific procedural matter raised both in defence of the OC application and in her own s 164 application.
9. The substantive matters of conduct of the parties set out in the reasons included:

(a) reference to the OC manager making inquiries with consumer affairs as to installation of the CCTV cameras in the Reasons at [43];

(b) Ms Fang's response to the resolution to reorient the cameras passed on 24 August 2021 refusing to do so in terms recorded by the Reasons at [46];

(c) The actual installation of the cameras did not accord with the proposal notified to the OC by Ms Fang and the Tribunal's finding that even if an OC meeting did authorise installation, the installation did not occur as arguably approved;

(d) Ms Fang's inability to produce evidence concerning the compliance with legislation in the installation of the cameras and the evidence about the orientation and legality of the installations canvassed at length in the Tribunal hearing;

(e) The actions of the OC in response to emails notifying of Ms Fang's intention to install the items, including the lack of notice of planning permission for the awning[33] and the lack of opportunity for the OC to consider the awning installation before the works were carried out,[34] the enquiries of the OC Manager as to the approved plans not attaching the awning to the balcony,[35] the convening of a special general meeting on 6 May 2021 concerning the request to install CCTV cameras and the record of that meeting,[36] the AGM on 24 August 2021 as well Ms Fang's response to the minutes of that meeting,[37]

(f) The conclusion that there had been a decision in accordance with s 153(2) concerning two of the installations which affected the validity of the breach notices, a matter discussed further below at [55] and following; and

(g) The conduct of the OC when addressing Ms Fang's application for relief based upon a 'fraud on the minority'. In that context the Tribunal addressed the motivation of the members of the OC and its manager concluding that there had been no lack of good faith on the part of the lot owners. While that conclusion was primarily relevant to the relief sought by Ms Fang, it was also a relevant consideration as to the conduct of the OC going to the fairness of relief sought by the OC.

1. The Tribunal made no criticism of the OC intent in its dealing with the alleged breaches. It observed no lack of good faith in addressing the complaints and voting of the majority of residents against Ms Fang, stating:
   1. In this proceeding, I am satisfied that [the other lot owners] - were attempting to address ongoing conduct by Ms Fang that plainly disregarded the obligations imposed on her by the OC Act. The lot owners expressed their frustration in their emails and in their interactions with Ms Fang. The manager initially took a fairly non confrontational approach to Ms Fang's conduct. With the benefit of hindsight, it would be fair to say that firm action to address Ms Fang's conduct was required. It is equally fair to say that the description of Ms Fang's conduct as "failing to engage" is accurate.[38]
2. Similarly, in considering the validity of the final breach notices, the Tribunal referred to the awning as having otherwise come to the attention of the OC based upon emails requesting Ms Fang to 'stop work' installing it. Ms McVeigh, the OC Manager, sent the emails in February 2022.
3. These matters are clearly relevant to the Tribunal's consideration later in the reasons as to the orders that should be made, and demonstrates the conduct of other residents and the owners corporation manager as is required.
4. Ms Fang led no evidence before the Tribunal of any attempt to comply with the OC resolution to reorient the cameras. There was no evidentiary basis or submission that reorientation rather than removal was a fair outcome and should be ordered, if the Tribunal found it appropriate to grant the OC some form of relief. The Tribunal described a binary outcome[39] as the CCTV installation was either authorised or it was not. In the circumstances there was no error in granting the remedy of removal of the CCTV.
5. Even if I am wrong, and the absence of an express statement that the procedural irregularities had been considered meant that those matters were not genuinely considered, I would not conclude it was appropriate to grant relief to Ms Fang in this appeal. At the Tribunal no submission was made by her that the procedural irregularity led to some unfairness to her in the orders made. Neither at the Tribunal, nor in the submissions before this Court did Ms Fang address the materiality of the relevant OC procedural conduct. She simply argued that the failure to conder OC procedural conduct itself was sufficient to obtain the relief sought. In essence it repeated the submission that lay at the heart of the s 164 application.

D.3 Grounds 14, 15, 26, 27: Did the Tribunal err in determining that the owners corporation had complied with s 153(2) of the OC Act?

1. Grounds 14 and 15 deal with an error of law in finding a decision where none was made. Ms Fang submitted that there had not been compliance with s 153(2) concerning the CCTV and air-conditioning because the resolution recorded in the minutes of the meeting on 24 August 2021[40] do not disclose a decision to take action under Part 10. This was because the resolution relied on required Ms Fang but not the Owners Corporation to take action.
2. Grounds 26 and 27 concern the orders for removal of the CCTV cameras contending legal error in circumstances where the resolution relied on only required re-orientation whereas the breach notices required reorientation or removal and ultimately the Tribunal ordered removal. This was said to be an error in failing to find the notices were invalid because they were not in terms of the resolution passed at the AGM.
3. Ms Fang's written outline addressing these grounds are found at [45]-[54] of her submission.[41] The substance of the submission as to the nature of the legal error makes the following points:
   1. The Tribunal erred in law in finding that the resolutions passed by the owners corporation in respect of the CCTV cameras and the air conditioning unit complied with s. 153. The resolutions did not specifically resolve to issue a breach notice or final breach notice to Ms. Fang.
   2. Further, the resolutions did not authorise the respondent to take action under Part 10, as required by s. 153. Instead, the resolutions required the applicant to take certain actions.
   3. Further, the resolution in respect of CCTV cameras required the applicant to reorient the cameras not to remove them. Notwithstanding the terms of the resolution the Tribunal ordered the removal of the CCTV cameras.
4. The defendant relies on a line of authority that resolutions or decisions made in breach of the OC Act concerning meetings and decisions of owners corporations do not automatically render the decision void or of no effect.[42] An aggrieved person may apply under s 165 to the Tribunal for a discretionary remedy. Ms Fang has not availed herself of that opportunity. Further the OC submits that a precise correlation between the terms of the decision to take action and the terms of the breach notice, final notice and relief sought from the Tribunal is not required. Rather all steps are directed at remedying the identified breach.
5. As a preliminary matter the plaintiff identifies an inconsistency between paragraph [76] of the Tribunal's reasons which describes the breach notice concerning the CCTV camera as 'valid' and paragraph [94] which describes the Final Breach Notice concerning the CCTV camera and the Breach notice which preceded it both suffer from a defect in that the evidence did not amount to an obstruction so that the final breach notice was ineffective. The plaintiff submits that the reference to a valid Breach Notice in [76] was a mistake.[43]
6. I am not persuaded that the reference in [76] to a valid breach notice is a mistake. Paragraph 94 goes to the question of substance - whether the alleged breach is borne out on the evidence before the Tribunal. The question of validity of the notice of breach addressed a different question - whether the necessary decision under s 153(2) had been made. In my view there is no necessary inconsistency. The present grounds concern whether or not the breach notices and final breach notices were invalid. I have approached it on the basis that the CCTV final notice was, as the Tribunal found, ineffective because of the insufficiency of the evidence to prove a breach of Model Rule 4.1.
7. The Tribunal's finding that the resolutions did amount to a decision under s 153(2) is found at paragraph [74]. It concluded that the resolution was sufficient to authorise the giving of a breach notice in relation to the cameras and the air conditioning unit because the resolution recorded the nature of the breach and the requirement of the owners corporation that Ms Fang remedy the breach. While the resolution itself could not amount to a breach notice, the wording was implicit that a breach notice would be issued. The inference as to this intention was drawn by the Tribunal from the wording of the resolution.
8. This finding that the resolution authorised the breach notice that was given is one of fact. It is based upon the wording of the resolution of 24 August 2021 and the inference drawn by the Tribunal from that wording as to the OC intention. As such it is a finding of fact and so an error of law only if the finding is one not open on the evidence. The submission that the Tribunal 'should have found that there was no decision'[44] seems to me to impermissibly intrude upon a merits review.
9. Insofar as the grounds of appeal might identify a question of law that the decision made could not satisfy s 153, Ms Fang pointed to no statutory provision or case law that required the relevant decision to act to take any particular form.
10. The reply submissions of Ms Fang described s 153(2) as a determination that commences a dispute resolution processes contained in the OC Act and authorises further steps, including giving notice to a lot owner to rectify a breach. It should therefore be inferred that there be conformity between decision and subsequent action taken pursuant to that decision.
11. I accept that s 153 requires a decision to be made by an owners corporation as to action pursuant to the statute. That decision may, by does not necessarily, commence a dispute process. Some dispute processes are commenced by a complaint under s 152, in which case action must not be taken under s 153(2) until dispute resolution in accordance with the rules has been followed. Part 10, deals with notices to remedy breach and notice of decisions not to take action, how notice may be given and with what may occur if a breach is not rectified. Section 155 specifies some matters that must be included: specification of the alleged breach, a notice in writing on the approved form. If a notice to rectify is not complied with then s 156 provides for a range of decisions that may then be made, including giving a final notice. Again a final notice must be in writing, use a prescribed form, and state the time and requirement to rectify the breach and notify the person that a decision to apply to the Tribunal may be made.
12. Without setting out in full these provisions that authorise action in Part 10, it is apparent that a further decision of the owners corporation is or may be required by s 156 if a breach is not rectified. There is nothing to confine any subsequent decision to the terms of the decision to act on the breach as known when the initial decision under s 153(2) is made. Indeed, common sense and the purpose of the dispute resolution procedure both suggest that the process is intended to take account of a variety of circumstances ranging from partial compliance, to a refusal to rectify, to any change in circumstances that arise as a result of or during the process of dispute resolution.
13. I accept therefore the submission of the defendant that precise correlation, or limitation as to rectification action required between the initial decision and notice and any subsequent decisions and notice is not required. What is important is that the nature of the breach and the requirement to act are, with each decision accompanied by an accurate statement of what is required to remedy the breach.
14. At the conclusion of the hearing the Minutes of a Special General Meeting held on 22 June 2023 and the accompanying agenda which had been before the Tribunal were tendered.[45] They were said to be relevant to the procedural steps taken under s 153. Before the Tribunal an alternative argument was made that the resolution recorded at that meeting to take action to enforce the breach notices was independently a decision that conformed to s 153(2)(b). The Tribunal did not need to deal with the alternative argument and no issue directly arises on this appeal.

D.4 Ground 13: failure to rule on, or give reasons for, Ms Fang's application for dismissal for non-compliance with s 153 of the OC Act.

1. Ms Fang sought dismissal of the OC's claim under s 164 of the OC Act. Section 164 provides:

VCAT may make any order dismissing or striking out an application by an owners corporation for an order requiring rectification of an alleged breach referred to in section 153 if it is satisfied that the owners corporation has not complied with that section.

1. This ground of appeal had two aspects. Ms Fang submits that there was no statement or ruling as to the outcome of the s 164 application. Second, she submits that there were no reasons given.
2. The Tribunal accepted this submission that the OC had not complied with s 153 in respect of the awning because it had not made a decision as required by s 153(2).[46] The discretion was therefore enlivened in respect of the relief concerning the awning.
3. Ms Fang relies on the observations of Bell J in Shearman v Owners Corporation No 1417405Y [2016] VSC 551 in relation to this ground of appeal to submit that 'the Tribunal should have considered in the exercise of its discretion under s 164, the conduct of the [OC] in relation to the dispute resolution process as set out above'.[47] Further Ms Fang submits that the Tribunal only considered to OC failure to make a decision in relation the awning and should have considered the conduct on the basis that the OC failed to make a decision in relation to the CCTV and the air-conditioning as well. The success of her wider argument under Ground 13 concerning the air-conditioning and the CCTV rests on her success in arguing that no decision had been made regarding those two installations for the purposes of s 153(2).[48]
4. The defendant's submission on this ground is simply that the reasons are both implicit and obvious. [49] It contends that the Tribunal considered the discretion under s 164 holistically within considering whether to make orders on Ms Fang's s 164 application and the owners corporations application for rectification. This is appropriate given the overlap when both matters require consideration of the factors under s 167. The defendant otherwise highlights a difficulty in understanding whether Ms Fang's argument is that the discretion miscarried, or whether there were insufficient reasons. Ms Fang submits in reply that the failure to give 'express independent treatment' to the application is an error of law not cured by an assertion that it is implicit. Non-compliance with s 153 is submitted to be a separate issue to be specifically addressed by the Tribunal.
5. I accept the defendant's submission that the Tribunal did determine the s 164 application by refusing to dismiss or strike out the OC application. So much so is conceded by Ms Fang at paragraph [58] of her submissions. The real issues raised by this ground are whether the refusal demonstrates the Tribunal acted upon a wrong principle and the adequacy of any reasons given for so doing.
6. Reliance on Shearman raises the first issue: whether the discretion was exercised upon a wrong principle. From his Honour's reasons in Shearman, the following matters can be stated:

(a) a mandatory obligation is imposed on an owners corporation to make a formal decision about action concerning alleged breaches by s 153(2) of the OC Act.

(b) Where a complaint has been made under s 152, s 153(3) provides that an owners corporation must not take action under s 153(2)(a) or (b) unless the dispute process under the relevant rules has been followed and failed to resolve the dispute.

(c) Non-compliance with the obligations under s 153 enlivens a discretion of the Tribunal under s 164 in respect of an application requiring rectification of an alleged breach.

(d) The discretion under s 164 is constrained by the purposes and objects of the OC Act which include the importance of internal mechanisms for dispute resolution that must be carried out by an OC acting objectively and in good faith.

(e) In the absence of a complaint made under s 152, the requirement of s 153(3) to follow internal dispute resolution processes does not apply.

1. In Shearman, the parties agreed that there had been no complaint to the owners corporate under s 152 of the OC Act. Having formed the view that the lot owner had breached the relevant Rules, the owners corporation made application to the Tribunal without following the internal dispute process under the Rules. The lot owner resisted the VCAT application on two bases: the failure to follow the internal dispute process deprived the Tribunal of jurisdiction, and alternatively if jurisdiction was established, the Tribunal should exercise its discretion to strike out or dismiss the proceeding under s 164 for the failure to utilise internal dispute mechanisms in the OC Act. Neither basis succeeded.
2. The Court concluded that a failure to comply with s 153 was not a jurisdictional bar[50] and that the absence of a complaint under s 152 meant that the mandatory obligation to follow the internal dispute mechanism was not enlivened.[51] As a consequence the owners corporation was not in breach of its obligation under s 153(3).
3. In the present case, like Shearman, there had been no compliant under s 152 when the decision to issue breach notices was made and so s 153(3) was not enlivened. Insofar as complaints were made later in the process there was no suggestion that they were made pursuant to, or complied with, s 152.
4. Although Bell J gave reasons as to the proper exercise of the discretion in s 164, he did so in the event that his conclusion was wrong (that is there had been no failure by the owners corporation to comply with s 153(3)). He said a failure to follow prescribed internal dispute resolution procedures was a relevant consideration as reflected in s 153(3) when exercising a discretion under s 164, and the Tribunal was not ' at large' in exercising its discretion.[52]
5. On the basis that s 153(3) was not enlivened and the OC therefore not obliged to engage in the internal process for resolving such complaints as a first step, Ms Fang has demonstrated no error of principle in the Tribunal's approach concerning the awning. Even if the Tribunal should have considered the other installations as well, the same conclusion would be reached as to the relevance of internal dispute processes in the absence of a s 152 complaint.
6. The second aspect of this ground is that the Tribunal failed to give any reasons for refusing Ms Fang's s 164 application.
7. The principles concerning the need for and adequacy of reasons are well known, and not disputed in this appeal. They can be summarised as reasons generally that display the following qualities

(a) They reveal a path of reasoning or analysis that leads to the ultimate conclusion, in other words they provide an intelligible explanation for the outcome,

(b) They are not simply a summary of the evidence and a statement of conclusion but will identify findings on material facts,

(c) They deal with both the evidence accepted and acted upon as well as explaining why other evidence has been rejected or excluded from consideration.

(d) As a result of the above matters reasons should enable parties to understand why the decision maker has reached the stated outcome, and enable the losing party to understand why the case was lost,

(e) the extent of the reasons will depend upon the circumstances of the case and address the issues raised and contested by the parties.

1. In relation to the Tribunal's reasons, the obligation to give reasons is set out in s 117 of the VCAT Act. It provides that reasons must be given for any order other than an interim order.[53]
2. The application under s 164 was heard and determined at the same time as the application by Ms Fang for other relief and the OC application for rectification. The availability of a power to dismiss or strike out was referenced by Ms Fang in her submissions to the Tribunal dated 21 June 2024 at [44]. Following reference to Shearman and a dot point list of steps said to be non-compliant with s 153, a submission at [50] was made that:

Section 153 not having been complied with, it is submitted the application to enforce the remaining Notices should be dismissed or struck out under s. 164.

1. The Tribunal has in my view provided reasons that comply with the principles set out above.
2. First, the 'application' to exercise power under s 164 was not something that was discrete requiring 'expressly independent treatment'. The discretion, where enlivened by a breach of s 153, does in this case at least, overlap substantially with the issues arising and appropriate relief in hearing the substantive applications for rectification by the OC and Ms Fang's relief against the OC. Accordingly, the reasons deal with the matters relevant to relief under the single heading. It was both open to and sensible for the Tribunal to note that s 164 was enlivened by its finding that no decision had been made to take action in respect of the awning. This is because despite the absence of a formal decision, the OC attempted to use the procedure available to it in Part 10 as if the decision had in fact been made. The reasons therefore in relation to s 164, necessarily overlap with issues of conduct of the OC and other factors under s 167. This is specifically noted by the Tribunal in paragraph 103.
3. Second, while Ms Fang submits that the lack of success under s 164 may be inferred from the lack of a strike out or dismissal order, the more accurate position is that it necessarily follows from the order that was made that Ms Fang remove the awning. Reasons may be adequate even though they leave the conclusion reached to be one by necessary inference.[54] A statement that an application is not struck out for example, is clear from reasons for granting the relief sought on its merit. As said by Ashley JA in Franklin, repeating Chernov JA in Barlow:[55]

...the fact that a judge may not mention some matter relevant to the disposition ... [of an] application does not necessarily mean that his or her judgement is deficient. For example, matters which are obvious need not be restated, and the element of value judgment involved...does not always lend itself to the degree of precision in expression... Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with the degree of finality.

1. Third, declining an application to dismiss or strikeout an application under s 164 lacks any degree of finality. The matter necessarily proceeds to a determination on its merit. In this case, both steps are addressed within the single hearing. Assuming an entitlement to reasons, as both parties do, in my view, the substantive reasons for determining an order that is 'fair' encompass similar considerations of OC procedural conduct as are relied on in seeking dismissal. No separate consideration is necessarily required.
2. Fourth, I should observe that the submissions rely on the OC failure to engage in the internal dispute process set out under the Model Rules and an absence of adequate reasons addressing this. This submission was more explicit before the Tribunal, where the reasoning of Bell J in Shearman was also relied on. Relevant to compliance with s 153 the Tribunal set out the Model Rules for a lot owner seeking approval to alter the external appearance of their lot and the obligations on the OC to consider such request for approval. Relevant to s 153, the Tribunal records that Ms Fang asserts that there had been no 'decision' of the OC to give the breach notices.[56] The Tribunal observed:
   1. Some time was spent in the hearing examining a number of complaint forms... the complaints were made some 5 months after the breach notices were given. I do not consider these complaint forms to be relevant to the validity of the breach notices, however, I return to a discussion of the complaints later in these reasons.
   2. The provision of the OC Act dealing with breach notices are in Division 1 of Part 10, Dispute Resolution, of the OC Act, sections 152 to 159. There are two pathways that may lead to a breach notice being issued.
   3. The differing pathways depend on whether a complaint is made under s 152 of the OC Act or not...
   4. If a complaint is made, the owners corporation must follow the dispute resolution process required by the Rules before taking any further action...The dispute resolution process is set out in Model Rule 7...
   5. However, the owners corporation is not required to follow the dispute resolution process if the alleged breach comes to the attention of the owners corporation in a manner other than by a complaint.[57]
3. This part of the Tribunal's reasons, and matters outlined between 61 and 71 correctly summarise the position explained in Shearman and formed a substantial part of Ms Fang's submissions before me concerning this ground of appeal. The steps taken prior to the issue of the breach notices, including whether or not decisions as required were made, all pre-dated the receipt of any complaint and accordingly, s 152 was not engaged and the obligation in s 153(3) not enlivened. Ms Fang's submission that, under s 164 the Tribunal should have considered 'the dispute resolution process as set out above', is not accepted if it is a reference to the internal dispute process set out in the Rules as quoted above and discussed in Shearman. Section 164 is only engaged by a breach of s 153, not by conduct generally. This is not to say that as a general proposition, conduct of an owners corporation and its engagement generally in disputes is not relevant under s 167 as the Tribunal stated.

D.5 Grounds 16 to 18: A failure to provide adequate reasons for orders to remove or relocate installations.

1. Ms Fang contends that the reasons for ordering removal of the installations were inadequate given its findings that no decision had been made, and/or the breach notices and final breach notices were ineffective. As explained earlier, the conduct of both Ms Fang and the owners corporation and its manager are discussed at length. Those reasons include the finding that Ms Fang's response to the notice that she re-orient or relocate the cameras was that she would not do so, would contest any steps to compel her to do so and would seek costs of defending her position. The reasons reference Ms Fang having ignored follow up requests to take action concerning the air-conditioning unit and accepted that it was accurate to describe Ms Fang's conduct as 'failing to engage'. In my view the reasons do provide an adequate explanation as to why the Tribunal considered it fair that the installations be removed by reference to the conduct of all parties and their rights and obligations under the OC Act.

D.6 Grounds 19 to 23, 28: Civil Penalty imposed

1. The final grounds concern the imposition of a civil penalty. These grounds allege:

(a) A failure to have regard to a relevant consideration, being conduct of the OC under s 167;[58]

(b) A Failure to consider/give weight to findings that there had been no decision concerning the awning under s 153(2), and that breach notices and final breach notices were ineffective;[59]

(c) By stating that Ms Fang had failed to comply with Model Rules 5.1 and 5.3 when there was no finding to that effect; and [60]

(d) By placing too much weight on Ms Fangs lack of remorse.[61]

1. Before considering the submissions I will observe at the outset that a number of the grounds allege error in the weight given by the Tribunal to particular aspects: the lack of remorse of Ms Fang, the findings of no decision or ineffective notices.
2. It has often been stated that the weight to be given to various considerations that inform a decision maker reaching a decision are a matter for the decisionmaker. To the extent that grounds (b) and (d) identify a failure to give proper weight to particular matters in determining penalty those grounds were not substantively addressed by Ms Fang in written or oral submissions. They have no prospect of success and I say nothing further about them.
3. Ms Fang's submissions accept that the Tribunal turned its mind to the conduct of the OC under s 167, set out in paragraphs 136 and 137 of the Reasons, but contends that despite recording these matters the Tribunal had to consider also the procedural matters concerning s 153 and the various ineffective breach notices that were relevant to the question of penalty. The reasons set out earlier concerning the consideration of the owners corporation conduct are equally applicable here Insofar as a failure to consider or give weight to procedural aspects of the owners corporation conduct, Ms Fang was in substance challenging the weight given to the evidentiary conclusion concerning s 167 matters.
4. That leaves the remaining matter of considering a failure to comply with Medel Rules 5.1 and 5.3 when there was no finding to that effect. The Model Rules state:

An owner or occupier of a lot must give written notification to the owners corporation if the owner or occupier changes the existing use of the lot in a way that will affect the insurance premiums for the owners corporation.

(1) An owner or occupier of a lot must obtain the written approval of the owners corporation before making any changes to the external appearance of their lot.

An owner or occupier of a lot must notify the owners corporation when undertaking any renovations or other works that may affect the common property and/or other lot owners' or occupiers' enjoyment of the common property.

1. I accept that no finding was made of a breach of Model Rule 5.1. In my view, although not referenced it is apparent on the face of the reasons that the Tribunal considered that Model Rule 5.2 was breached. Model Rules 5.2 and 5.3 are set out in the Reasons at [17]. Later the Tribunal said:

[114] I consider that, if it had been intended that notification alone be sufficient in the case of proposed alteration to the external appearance of a lot, Model Rule 5.2 would only require notification by the pot owner. The drafting of model Rule 5.2 clearly requires the lot owner proposing alterations to the external appearance of the pot to obtain written approval for those alterations.

[115] Accordingly I find that Model Rule 5.2 requires that a lot owner expressly seek the approval of the owners corporation and that the lot owner provide the owners corporation with full details of what is proposed...

1. The Tribunal made a finding, at [116] that Ms Fang did not seek written approval, nor did she give reasonable particulars. In light of this I am satisfied that the reference to Model Rule 5.1 in paragraph [134] is a typographical error and the Tribunal intended to reference this to its express finding of a breach of Model Rule 5.2 as set out in paragraphs 113 - 116.
2. The Tribunal also referred to its determination of Ms Fang's failure to comply with Model Rule 5.3. The plaintiff submits that the Tribunal made no determination of breach of Model Rule 5.3. The Tribunal makes little reference to the installations' compliance with Model Rule 5.3. However, the Tribunal made the following finding concerning the awning:

[59] ...I am satisfied that [Ms Fang] chose to behave in a manner that was inconsistent with the obligation of the owners corporation to give consideration to the issues of quiet enjoyment, structural integrity of lots and common property, and the value of lots and common property. I am satisfied that, in the installation of the awning, the CCTV cameras and the air-conditioning unit, Ms Fang was in breach of the requirements of the OC Act.

1. The Tribunal's reference to and finding as to the effect of Ms Fang's actions on lots and common property, and on owners' and occupiers' quiet enjoyment echoes Model Rule 5.3. The finding is also found in paragraph [131] when noting that planning or building approval does not override the need to obtain permission for workers that alter the external appearance of lots.
2. Despite few specific references to Model Rule 5.3, the findings clearly establish that Ms Fang did not obtain written approval as required by Model Rule 5.2 and that her notice or notification as required by Model Rule 5.3 was not adequate. The email concerning the awning was not notification of the work actually undertaken (Finding at 24, 27 and 28), the installation of the CCTV cameras was not undertaken in accordance with the notification that was given (paragraphs 40, 47, 48, 49 and 108), and the air-conditioning unit was placed so as to alter the external appearance of Ms Fang's lot and did not consider matters raised by Model Rule 5.3.[62]
3. The Tribunal does consider the difference between the obligation to obtain written approval in rule 5.2 and the requirement to notify an owners corporation in rule 5.3, saying:

It is significant that that the requirement in Rule 5.2 to obtain the written approval of the owners corporation is expressed in very different terms from the requirement in Rule 5.3 to notify an owners corporation of renovations or other works that may affect the common property and or other lot owners' enjoyment of the common property. Rule 5.2 can also be contrasted with the requirement in s 133 of the OC Act that a lot owner give notice to an owners corporation of any application by the lot owner for a building permit or a planning permit.[63]

1. I am satisfied that the Reasons demonstrate that a finding was made of breach of Model Rules 5.2 and 5.3 by Ms Fang.
2. Accordingly, the appeal does not in my view have a real prospect of success and so leave to appeal is refused. I propose ordering the appeal be dismissed, and subject to any submissions from the parties, that costs follow the event.

[1] Order of Senior Member in Natalie Hong Fang v Owners Corporation Plan No. RO001311 (Owners Corporations) (VCAT, OC2/2023 and OC1224/2023, 10 January 2025).

[2] Fang v Owners Corporation Plan No. RO001311 (Owners Corporations) [2025] VCAT 32, 5 [15] ('Reasons'). Other issues identified at [15(e)-(h)] are not relevant to this appeal.

[7] Owners Corporations Act 2006 (Vic) ('OC Act') s 153 (1)(b).

[14] Transcript of proceedings, Natalie Fang v Owners Corporation No. RP001311 (Supreme Court of Victoria, S ECI 2025 00590, Forbes J, 24 July 2025) ('T') 11, 26-27.

[15] See, for example, Energy Technology Australia Pty Ltd v Owners Corporation PS 439401J ('ETA'), following and applying Christ Church Grammar School v Bosnich (2010) 34 VAR 23.

[16] 55 CLR 499.

[18] Defendant, 'Respondent's Written Submissions' filed 20 May 2025 ('Defendant's Submissions') [30].

[19] Filippou Management Pty Ltd v MREEF Project Company No 11 Pty Ltd & Ors (No 2) (Civil Claims) [2010] VCAT 1261 [20].

[21] [2007] VSC 117.

[22] [2017] VSC 145.

[25] Collin's Dictionary (online at 17 December 2025) 'fair'.

[26] [2010] VCAT 1261.

[27] [2018] VCAT 645 (emphasis in original).

[30] See discussion below at [74], and Shearman v Owners Corporation No 1 417405X [2016] VSC 551 ('Shearman').

[32] Owners Corporation 1 PS611240X v Brady (Owners Corporation) [2018] VCAT 645, [48]-[50].

[39] Transcript of proceedings, Fang v Owners Corporation Plan No.RO001311 (Owners Corporations) [2025] VCAT 32 (VCAT, OC2/2023, OC1224/2023, Senior Member L Johnson, 17 June 2024) ('VCAT T') 537-538.

[42] Jenkins v OCVM Commercial Pty Ltd (Owners Corporations) [2019] VCAT 1078 ('Jenkins').

[43] Plaintiff, 'The Applicant's Outline Of Submissions' filed 28 April 2025 ('Plaintiff's Submissions') [68].

[46] At Reasons [75], extracted above at [7].

[47] What is set out above is an extract from Shearman paragraphs 52, 53 and 55.

[54] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317.

[55] Ahley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 relied on by both parties, Ashley JA encapsulating observations of Chernov JA in Barlow v Hollis [2000] VSCA 26.