The Owners – Strata Plan 1998 v Perifa Gerrale Pty Ltd

Jurisdiction: Class 3

Before: Duggan J

Decision: See orders at [98]

Catchwords: LAND LAW – strata title – strata renewal plan for redevelopment – s 182 of the Strata Schemes Development Act 2015 (NSW) – objections by dissenting owners – whether relationship existed between owner of lots and developer – strata renewal plan given effect – costs as agreed

Legislation Cited: Strata Schemes Development Act 2015 (NSW), ss 154, 156, 157, 176, 178, 179, 180, 181, 182, 183, 185, 188, Pt 10 Divs 2-5
Strata Schemes Management Act 2015 (NSW), Sch 1 Pt 2 cl 4
Strata Schemes Development Regulation 2016 (NSW), cll 30, 33, 36, 37
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 10.6, 10.21
State Environmental Planning Policy (Housing) 2021 (NSW)
Sutherland Shire Local Environmental Plan 2015 (NSW)

Cases Cited: The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd [2025] NSWLEC 9

Texts Cited: Macquarie Dictionary

Category: Principal judgment

Parties: The Owners – Strata Plan 1998 (Applicant)
Perifa Gerrale Pty Ltd (First Respondent)
Maria Isabella Stameteris (Second Respondent)

Representation: Counsel:
G Farland and M Keene (Applicant)
J McKelvey and L Nurpuri (First Respondent)
F Berglund (Second Respondent)
Solicitors:
Bannermans Lawyers (Applicant)
Corrs Chambers Westgarth (First Respondent)
Hub Lawyers (Second Respondent)

File Number(s): 2025/00266986

Publication restriction: Nil

JUDGMENT

Nature of proceedings

The Application

1. On 11 July 2025, The Owners – Strata Plan 1998 (the Applicant) filed an application pursuant to s 179 of the Strata Schemes Development Act 2015 (NSW) (SSD Act) (the Application) seeking orders to give effect to a strata renewal plan (SRP) and consequential orders. The SRP is for the strata redevelopment of the Strata Plan No 1998 (SP 1998).

2. The Application was supported by Perifa Gerrale Pty Ltd (the First Respondent), the proposed developer of the proposed strata redevelopment and the owner of Lots 21, 25, 51 and 53.

3. The Application was the subject of objections filed by three lot owners.

Facts

The apartment buildings

4. The SP 1998 comprises common property and three separate apartment buildings comprising a total of 66 lots (being 33 units and 33 associated parking lots) located at 8 Gerrale Street and 1-3 Ozone Street, Cronulla NSW 2230 (the Subject Land).

5. The three apartment buildings include:

6. “Lynton”, which is located at 8 Gerrale Street, Cronulla NSW 2230 and contains 9 residential apartments and 9 associated parking lots;

7. “Loombah”, which is located at 1 Ozone Street, Cronulla NSW 2230 and contains 12 residential apartments and 12 associated parking lots; and

8. “Levuka”, which is located at 3 Ozone Street, Cronulla NSW 2230 and contains 12 residential apartments and 12 associated parking lots.

9. The apartment buildings were originally constructed circa 1966. Each building comprises six split levels and ground floor parking with undercover or open air parking. In some cases, garage doors have been provided for some undercover parking.

The Subject Land

7. The Subject Land has an area of approximately 2,681m2. The land is generally level to the adjacent road level.

8. The Subject Land is zoned R4 High Density Residential under the Sutherland Shire Local Environmental Plan 2015 (NSW). The maximum height of building control is 20m along the Ozone Street frontage and 25m along the Gerrale Street frontage. The maximum floor space ratio control is limited to 2:2:1 by the Low and Mid Rise Housing Policy, part of the State Environmental Planning Policy (Housing) 2021 (NSW).

Evidence

9. The Applicant relied upon the following evidence which was read without objection:

10. Two affidavits of Kristie Pike affirmed on 26 February 2025 and 5 December 2025;

11. Four affidavits of Timothy John L’Orange sworn on 10 April 2025, 20 June 2025, 14 August 2025 and 4 December 2025;

12. Four affidavits of David Colin Wellman affirmed on 1 July 2025, 5 December 2025, 8 December 2025 and 23 January 2026;

13. Affidavit of Paul Adam Wiseman sworn on 8 December 2025;

14. Affidavit of Service of Allen Salib sworn on 23 July 2025;

15. Affidavit of Service of Christopher Zadravec affirmed on 24 July 2025;

16. Affidavit of Service of Maddison Grove affirmed on 15 August 2025;

17. Affidavit of Service of Conrad Peter Gornik sworn on 15 August 2025; and

18. The expert reports of Peter Karvon, valuer, filed on 11 July 2025, 5 December 2025 and 23 January 2026.

19. The First Respondent relied upon the following evidence which was read without objection:

20. Three Affidavits of Fabrizio Perilli affirmed on 17 June 2025, 31 October 2025 and 8 December 2025; and

21. The expert report of David Lunney, valuer, filed on 22 January 2026.

22. Additionally, the parties tendered a bundle of documents comprising:

23. The Class 3 Application filed on 11 July 2025 which included the Application; and

24. The Objections of Robina Mottram and John Artuphel filed on 8 August 2025, Maria Isabella Stamateris filed on 7 August 2025 and Dennis John Alexander filed on 5 September 2025.

Legislative provisions

12. The Application before the Court relates to a strata renewal plan for the premises. A strata renewal plan is defined in s 154 of the SSD Act as:

strata renewal plan means a strata renewal plan prepared in accordance with this Part for a strata scheme.

13. The statutory process that precedes the creation of a strata renewal plan commences at s 156 of the SSD Act which provides:

156 Submission of strata renewal proposal

(1) Any person (whether or not the person is the owner of a lot) may give a written proposal for the collective sale or redevelopment of a strata scheme (a strata renewal proposal) to the owners corporation of the scheme.

(2) A strata renewal proposal must include the information or other matters prescribed by the regulations.

14. Clause 30 of the Strata Schemes Development Regulation 2016 (NSW) (Regulation) prescribed the content of a strata renewal proposal.

15. The process that follows after the submission of a strata renewal proposal is dictated by Pt 10 Divs 2 to 5 of the SSD Act, which I will not repeat here. The process was described by Pritchard J in The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd [2025] NSWLEC 9 at [54]-[55] (Chimes) as comprising eight steps. I agree with her Honour’s summary of the process and adopt her description.

16. Where, after following the statutory process, an owner’s corporation proposes to proceed with a strata renewal plan s 178 of the SSD Act provides:

178 Decision to apply for order

(1) If the required level of support for a strata renewal plan for a strata scheme is obtained—

(a) the secretary of the owners corporation, or a member of the strata renewal committee, must convene a general meeting of the owners corporation for the purpose of deciding whether to apply to the court for an order to give effect to the plan, and

(b) the owners corporation may, by resolution, decide to apply to the court for the order.

(2) To remove doubt, an application for an order may be made by the owners corporation even if an owner of a lot in the strata scheme at the time the application is made is not an owner who gave a support notice for the strata renewal plan.

17. The content of the application for the order is dictated by s 179 of the SSD Act which provides:

179 Application for order

(1) An application for an order to give effect to the strata renewal plan must be accompanied by the following—

(a) a copy of the plan,

(b) a copy of each support notice that is in effect under this Part for the plan,

(c) the names of each dissenting owner and each registered mortgagee and covenant chargee of a dissenting owner’s lot,

(d) a declaration given by the owners corporation identifying the steps taken in preparing the plan and obtaining the required level of support in accordance with this Part,

(e) if the plan is for a collective sale of a strata scheme—

(i) a declaration given by the purchaser, if known, disclosing the nature of any relationship, whether personal or commercial, the purchaser may have with the owner of any lot in the scheme, and

(ii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot,

(f) if the plan is for a redevelopment of a strata scheme—

(i) a declaration given by the developer disclosing the nature of any relationship, whether personal or commercial, the developer may have with an owner of any lot in the scheme, and

(ii) a document specifying the amount to be paid to each dissenting owner for the owner’s lot, and

(iii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each dissenting owner’s lot, and

(iv) a document detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the plan,

(g) any other information or document about the proposed collective sale or redevelopment prescribed by the regulations.

(2) Notice of the application must be served, in accordance with rules of court, on—

(a) each owner of a lot in the strata scheme, and

(b) each registered mortgagee or covenant chargee of a dissenting owner’s lot, and

(c) if the strata renewal plan is for a collective sale of a strata scheme—the proposed purchaser (if known), and

(d) if the strata renewal plan is for a redevelopment of a strata scheme—the local council and the proposed developer (if known), and

(e) any other person directed by the court.

18. Where an application is made to the Court objections to the making of the order may be made in the manner and by a person prescribed by s 180 of the SSD Act, which provides:

180 Objection to application

(1) Any of the following persons may file an objection to the application for an order to give effect to the strata renewal plan—

(a) a dissenting owner,

(b) a person on whom notice of the application must be served under section 179 (2) (b)–(e).

(2) The objection must be filed in the court within 21 days after notice of the application is served on the person filing the objection.

(3) A person who files an objection need not be a party in proceedings before the court relating to the strata renewal plan.

19. The nature of the hearing of the application and the relevant determination of the application are dictated by ss 181 and 182 of the SSD Act which relevantly provides:

181 Hearing of application

(1) The court must hear and dispose of an application for an order in proceedings before the court.

(2) If the court orders mediation or arranges a conciliation conference in relation to the application—

(a) the court may terminate the mediation or conference at any time and hear, or continue to hear, the proceedings, or

(b) any party to the mediation or conference may, at least 90 days after the day the first mediation or conference session starts, ask the court to terminate the mediation or conference and hear, or continue to hear, the proceedings, or

(c) if the parties reach an agreement at mediation or the conciliation conference and the strata renewal plan is varied under the agreement—the court may hear, or continue to hear, the proceedings in relation to the varied plan.

(3) The court must hear, or continue to hear, the proceedings whether or not the parties reach an agreement at mediation or a conciliation conference.

(3A) Subsection (3) has effect despite section 34 (3) (a) of the Land and Environment Court Act 1979.

(4) If a strata renewal plan is varied at mediation or a conciliation conference, the varied plan is taken to be the strata renewal plan under this Act.

(5) However, the court must not make an order in relation to a strata renewal plan that is varied at mediation or a conciliation conference unless—

(a) written agreement to the variation has been given by the owner of each lot in relation to which a support notice has been given for the plan, and

(b) written notice of the variation has been served by the owners corporation on the following (unless otherwise directed by the court)—

(i) each dissenting owner,

(ii) each person on whom notice of the application must be served under section 179 (2) (b)–(e).

(6) Any of the following persons may be joined as a party to the proceedings—

(a) a person who has filed an objection to the application and applies to be a party to the proceedings,

(b) a person directed by the court to be joined.

…

182 Decision of court

(1) The court must make an order giving effect to the strata renewal plan if satisfied of the following matters—

(a) the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith,

(b) the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with this Act,

(c) all notices required to be served under sections 179 and 181 have been served,

(d) if the plan is for a collective sale—the proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot and the terms of the settlement under the plan are just and equitable in all the circumstances,

(e) if the plan is for a redevelopment—the amount to be paid to a dissenting owner is not less than whichever of the following is greater—

(i) the compensation value of the owner’s lot,

(ii) an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan,

(f) if the plan is for a redevelopment—the terms of the settlement under the plan, as those terms apply to any dissenting owner, are just and equitable in all the circumstances,

(g) any other matter prescribed by the regulations.

(2) The court may, on its own initiative, vary the strata renewal plan and make an order giving effect to the varied plan if satisfied of the matters referred to in subsection (1).

(3) However, the court cannot vary a strata renewal plan under subsection (2) unless—

(a) the variation is of a minor nature that does not affect the plan in any substantial way, and

(b) written agreement to the variation has been given by the owner of each lot in relation to which a support notice for the plan has been given.

(4) The court must not make an order giving effect to the strata renewal plan if the court is not satisfied about the matters referred to in subsection (1).

(4A) The court may be satisfied of the matters referred to in subsection (1)(b) and (c) despite a defect or irregularity if the court is satisfied that the defect or irregularity has not caused and is not likely to cause substantial injustice.

(4B) In considering an objection to the application for the order, the court must consider whether the person who filed the objection did not file the objection in good faith, including because of a conflict of interest.

(5) The court must give written reasons for its decision to make, or not to make, an order.

20. In Chimes at [56] Pritchard J summarised the requirements of the Court’s considerations to fall into three categories in the following terms:

56 The SSD Act requires the court to consider:

(1) the application to it and whether it complies with s 179 of the SSD Act;

(2) whether the court can be satisfied of the matters identified in s 182 of the SSD Act; and

(3) the terms of the final orders under s 183 of the SSD Act.

21. The parties in these proceedings approached the hearing adopting these three categories and I will proceed on the same basis.

Parties and objections to making orders

22. By hearing of a Notice of Motion on 9 December 2025 I determined, for the reasons set out in my ex tempore decision, that one of the dissenting owners, Ms Stamateris, should be joined as a party to the proceedings, and was joined as the Second Respondent. Due to the proximity of the hearing date, the dates were vacated and refixed for hearing on an expedited basis to commence on 3 February 2026. The expedited hearing was necessary to enable a determination to be made in sufficient time to enable any contractual obligations to be made if an order was made to give effect to the proposed SRP.

23. Pursuant to directions made at that time the Second Respondent filed a Statement of Facts and Contentions setting out the basis for her opposition to the making of the orders sought by the Applicant. The Second Respondent also filed evidence, both lay and expert, addressing the contentions raised.

24. At the hearing of this matter, the Second Respondent indicated that she had altered her position in connection with her active participation in the proceedings. Leave was granted to the Second Respondent to file a Submitting Appearance. The Submitting Appearance expressed that such position was made on condition of the making of an agreed order for costs to her benefit and stated that her position with respect to the Application was that identified in par 9 of the draft Short Minutes of Order attached to the Submitting Appearance which stated:

9 The court notes the second respondent consents to these orders being made.

25. The orders to which the Second Respondent referred were the form of orders identified by the Applicant as being sought in the proceedings.

26. Whilst the Second Respondent is no longer an active party in the proceedings, and now consents to the orders being made, she remains a dissenting owner within the meaning of that term defined in s 154 of the SSD Act and her objection to the orders also remains. Accordingly, I remain bound to consider the objections filed by her, the weight to be given in the consideration of such objections will be informed by her statement of consent to the orders.

27. By Notice of Motion filed on 28 January 2026 another of the dissenting owners, Mr Alexander, sought to be joined as a party to the proceedings. He wished to be heard in connection with matters identified in the affidavit that supported his Notice of Motion. When asked to identify the nature of the participation in the process of the hearing he wished to undertake if joined, he indicated that he wished to be able to give the evidence set out in his affidavit. It was explained to him that the Court was able to receive evidence from him as to his objection without the need for him to be joined as a party. On that basis, Mr Alexander withdrew his application to be joined and consequently, his Notice of Motion was dismissed. His affidavit was read without objection and he was not required for cross-examination. I will consider his objection together with his affidavit evidence in the determination of the relevant considerations.

28. Three objections to the application were received by the Court in accordance with the requirements of s 180 of the SSD Act who were also dissenting owners (as that term is defined by the SSD Act):

29. Ms Stamateris – the owner of Lots 24 and 60, and referred to above;

30. Mr Alexander – the owner of Lots 3 and 38, and referred to above; and

31. Ms Mottram and Mr Artuphel – the owners of Lots 1 and 59.

32. I will consider the substance of such objections as they arise in the consideration of the matters identified in s 182 of the SSD Act.

Whether the application to the Court complies with s 179 of the SSD Act

30. The Application as filed with the Court on 11 July 2025 comprised a number of documents. The requirements of s 179 of the SSD Act mandates the documents to accompany the application. In this matter, the Applicant prepared a document entitled “Table of Requirements under section 179…” which was included in the documents accompanying the Application. The document identified the relevant provision of s 179 and the location in the documents accompanying the Application where satisfaction of the s 179 requirement was to be found in the Application. The table is annexed to this decision at Annexure A.

31. I have considered the mandatory requirements of s 179 of the SSD Act and am satisfied that the table above correctly identifies the documents that are relevant to the Application and must accompany the Application. I have had regard to the evidence referenced in the table above, and I am satisfied that all of the requirements mandated by s 179 formed part of the documents accompanying the Application.

32. Having regard to the affidavit evidence of Messrs Salib, Zadravec and Gornik and Ms Grove read in the proceedings I am also satisfied that notice of the Application was served in accordance with the rules of court on the relevant persons identified in s 179(2) of the SSD Act and in accordance with the rules of court as identified in rr 6.2, 10.6 and 10.21 of the Uniform Civil Procedure Rules 2005 (NSW).

33. I note that no relevant objection was raised by the dissenting owners as to the compliance of the Application with the mandatory requirements of s 179 of the SSD Act.

Whether the Court can be satisfied of the matters identified in s 182 of the SSD Act

34. Section 182 of the SSD Act sets out the mandatory matters upon which the court must be satisfied. If the court is satisfied the Court must make an order giving effect to the SRP: s 182(1). If the court is not satisfied of the matters referred to in s 182(1) the court must not make an order giving effect to the SRP: s 182(4).

35. I will consider each of the matters identified in s 182 of the SSD Act as they relate to the facts of this case.

Section 182(1)(a) – The relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith

36. The objectors raised issues for consideration with respect to the relationship between Mr Perilli, the representative of the First Respondent, and Mr Wellman, the Secretary of the Applicant between the periods October 2022 until around late 2025 and owner of Lots 22 and 42 of SP 1998.

37. The objection of Ms Stamateris contended at par 2 of the written objection that:

The Perifa strata renewal proposal is objected to in circumstances where:

a) An owner engaged with a person known to them for a collective sale of the property; and

b) At the time of seeking a strata renewal proposal Perifa as a company did not exist; and

c) The proposed collective sale was to negate the need for a special levy to undertake maintenace [sic] on the property; and

d) The chairman of the strata renewal committee advocated for Perifa's strata renewal plan to the exclusion of competing strata renewal offers.

38. The objection of Mr Alexander identified that, in part, his objection related to the “pecuniary interest” of Mr Wellman. Mr Alexander identified this contention is his objection in the following terms:

PECUNIARY INTEREST OF DAVID WELLMAN

David was absent from the Strata Committee from 2009 up until 2019 when he rejoined. He came with a Strata Renewal initiative and took the Office Bearer role – Secretary. Then –

• ignored the agenda I had prepared of 16 items and provided minutes of meeting that were not as agreed.

• ignored my 50 pages of letters and reports that were found not sent to the Committee members as I instructed, that I resent to each member. I later motioned a reprimand.

• terminated GMG and installed PT at his recommendation to the owners.

• Engaged Bannermans Lawyers

• Issued a questionaire [sic] to owners as to the price they would accept.

• Introduced Perifa in a non competitive process, for a friend, colleague or business partner.

• failed to correct any of the flaws.

• failed to maintain the buildings and grounds.

The listed flaws

• Valuations that did not include the Utility Lots

• Valuations that did not assess view, aspect, condition, access and were based on out of date data or uncomparitive [sic] sales.

• omissions in the planning analysis that ignored the Urban Renewal initiative as a deferred matter.

• failure as secretary to raise concerns regarding to offer reduction that was not flaged [sic] in the motion.

• exhausting owners funds in implementing flawed and unnecessary works of

• pilot project

• balcony proping [sic]

• balcony door sealing

• legal process

All to give the Owners no other way forward.

David claims he has no pecuniary interest.

39. The substance of these assertions were also identified in Mr Alexander’s affidavit evidence.

40. Mr Wellman affirmed an affidavit on 1 July 2025 which was read without objection in these proceedings. Mr Wellman was not cross-examined on the content of his affidavit (or any of the affidavits that were affirmed by him and read in the proceedings). Mr Wellman explained his relationship with Mr Perilli at par 9(e)-(f) as follows:

(e) In my career as a strata managing agent I have come into contact with a number of property developers which have had commercial relationships with Wellman Strata, the Strata Management firm of which I am Director. These relationships have been limited to business development and appointments of Wellman Strata as strata managing agent to strata plans developed by those property developers. Between 27 July and 3 August 2022 I reached out to several of these developers in my capacity as Secretary of the Owners Corporation as approved by the Strata Committee of the Owners Corporation to see if there was any interest in them making an offer to acquire the Scheme, being:

i. Toga;

ii. Perifa (a developer which neither I nor Wellman Strata had a commercial relationship with, but which was established by Fabrizio Perilli, formerly of Toga);

iii. Hyecorp Property Group; and

iv. Loftex Property Group.

(f) I confirm that beyond those commercial relationships listed above, I do not have any commercial relationship with these entities, nor do I receive any additional benefit from them as part of this process.

41. Mr Perilli swore an affidavit on 17 June 2025 which was read without objection in these proceedings. Mr Perilli was not cross-examined on the content of his affidavit (or any of the affidavits that were sworn by him and read in the proceedings). Mr Perilli explained his relationship with Mr Wellman at pars 12 and 13 as follows:

12 In my time as director of Perifa, Perifa Gerrale and its related entities, I have come into contact with a number of strata management firms, including Wellman Strata of which David Colin Wellman is a director. In November 2022, Mr Wellman reached out to me in his capacity as Secretary of the Owners Corporation as approved by the Strata Committee to see if Perifa was interested in an offer to acquire SP 1998. My relationship with Mr Wellman is limited to this interaction. As far as I am aware, Mr Wellman has not received any benefit from this interaction from Perifa .

13 In my time as a director of Perifa, Perifa Gerrale and its related entities, I am not aware of any relationship between Perifa, Perifa Gerrale, its related entities and the lot owners of SP 1998 other than as disclosed in the Put and Call Option Deeds entered into by those lot owners set out in paragraph 14 below.

42. Section 182(1)(a) of the SSD Act directs attention not to whether there exists a relationship between the developer and the owners of the lots to which the strata renewal plan relates, but whether, where such a relationship exists, did that relationship prevent the plan being prepared in good faith.

43. On the evidence it is apparent that there was a business familiarity between Mr Wellman and Mr Perilli. That familiarity comprised a knowledge of each other and the business endeavours of each person. It is in that context that the question of a relationship arises. The section does not itself identify the nature and scope of a “relationship” to which it refers. The Macquarie Dictionary defines the ordinary meaning of “relationship” as being:

relationship

Noun 1. connection; a particular connection.

2. connection by blood or marriage.

3. an emotional connection between people, …

44. The use of the term “relationship” in the legislative context appears to be requiring something more than mere knowledge of or limited familiarity with another person. The ordinary meaning of the word reinforces the requirement that there be more. I need not define the full extent of a relationship necessary to meet such a term, but I am prepared to find that the relationship between Mr Wellman and Mr Perilli was not sufficient to meet the intent of that term.

45. The familiarity described by both Mr Wellman and Mr Perilli does not disclose a financial connection, an emotional connection or a business connection. Whilst they knew who each other was and what business each was in (and the nature and extent of such business enterprises) I do not consider that such familiarity was of sufficient depth or connection to comprise a relationship within the meaning of s 182(1)(a) of the SSD Act.

46. If a relationship that met the requirements of s 182(1)(a) of the SSD Act was relevantly present, it would be necessary to determine whether such relationship had “prevented” the plan being prepared in good faith. In this case, there is no evidence to support a finding that Mr Wellman and/or Mr Perilli acted in a manner, due to their familiarity with each other, that prevented the plan being prepared in good faith. In particular, the initial approach by Mr Wellman to ascertain interest was to a number of developers. The First Respondent was the only developer of that group that displayed interest. The conduct of the owners corporation in considering a proposal by the First Respondent was conducted in an open and transparent manner as prescribed by the mandatory requirements of the SSD Act, including: the giving of notice; the casting of votes; the conduct of the owners corporation meeting; and the meetings of the strata renewal committee, such that any relationship between the two men, if it existed, did not appear to influence in any way the democratic process of consideration and assessment of the First Respondent’s proposal and the ultimate acceptance of the SRP.

Section 182(1)(b) – The steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with this Act

47. The SSD Act and the Regulation mandates the steps that are required to be taken in preparing the SRP and obtaining the required level of support to the SRP. In this matter, the Applicant and the First Respondent each prepared a document identifying the relevant legislative steps and the evidence that established that such step had been taken and the legislative provision complied with. A final version of this document was provided as an aide memoire on 4 February 2026 by the Applicant (Steps Document), which included tracking identifying the differences between it and earlier versions of the document. I attach hereto as Annexure B a copy of the Steps Document (with the tracking removed).

48. The Steps Document identified the relevant provision of the SSD Act and Regulation that related to the preparation of the SRP and the obtaining of the requisite level of support and the location of the evidence relating to each relevant requirement.

49. I have considered the mandatory requirements of the SSD Act and Regulation that makes provision for the preparation of the SRP and the obtaining of the requisite level of support. I am satisfied that the Steps Document correctly identifies the provisions of the SSD Act and Regulation as it relates to such requirements. I have had regard to the totality of the evidence and in particular the evidence referenced in the Steps Document, and I am satisfied that all of the requirements mandated by the SSD Act and Regulation with respect to the steps taken in preparing the SRP and obtaining the required level of support were carried out in accordance with the Act.

50. The requirements of s 176 of the SSD Act provide:

176 Notice if required level of support obtained

(1) If the required level of support for a strata renewal plan is obtained before the plan lapses the returning officer for the plan must give written notice of that fact to the secretary of the owners corporation.

(2) The secretary must, within 14 days after receiving the notice give written notice that the required level of support for the strata renewal plan has been obtained to—

(a) each owner of a lot in the strata scheme, and

(b) the Registrar-General.

(3) On receiving the notice, the Registrar-General must make appropriate recordings in the folio for the common property in the strata scheme to show that the scheme is the subject of a strata renewal plan.

(4) If requested by the Registrar-General, the owners corporation must give the Registrar-General the information about the strata renewal plan the Registrar-General requires to make the recordings referred to in subsection (3).

(5) On and from the making of the recordings referred to in subsection (3), a support notice that is in effect for the strata renewal plan is taken to have been given under this Part by any subsequent owner, registered mortgagee or covenant chargee of the lot in relation to which the support notice was given.

51. The evidence discloses that whilst the necessary notice was given as required by s 176(2)(a) of the SSD Act the notice to the Registrar-General as dictated by s 176(2)(b) was in fact given 21 days after the relevant event rather than within the 14 days as required. I accept the submissions of the parties that such a non-compliance is not a matter for which the Court must be satisfied under s 182(1). However, even if it was so mandated, I would consider the breach to be one that was not likely to cause substantial injustice such that the satisfaction of the matters referred to in s 182(1)(b) was still capable of being satisfied by application of the provision of s 182(4A) which provides:

(4A) The court may be satisfied of the matters referred to in subsection (1)(b) and (c) despite a defect or irregularity if the court is satisfied that the defect or irregularity has not caused and is not likely to cause substantial injustice

52. The purpose of the notification of the Registrar-General is to provide notification on title to alert those considering transactions relating to the strata plan that there is support for the SRP. In this case, there is no evidence that any such transactions were proposed or that any person was misled or inconvenienced by the delay in the notification to the Registrar-General.

53. I therefore find that the non-compliance with the timing requirement for the notification of the Registrar-General as required by s 176(2)(b) of the SSD Act is not a matter upon which I must be satisfied, but if it were I would be satisfied that the requirements of s 182(1)(b) had been met notwithstanding the lateness of the notice.

Section 182(1)(c) – All notices required to be served under sections 179 and 181 have been served

54. As indicated at [32] above, I am satisfied on the evidence that all relevant notices as required by s 179(2) of the SSD Act have been served.

55. The notice required by s 181(5) of the SSD Act relates to circumstances in which the SRP is proposed to be varied at mediation or conciliation. This provision is not relevant to the facts of this case.

56. Accordingly, I am satisfied that the requirements of s 182(1)(c) of the SSD Act have been met.

Section 182(1)(d) – If the plan is for a collective sale - the proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot and the terms of the settlement under the plan are just and equitable in all the circumstances

57. The SRP, the subject of the Application, is not for a collective sale as defined in s 154 of the SSD Act therefore this matter does not arise for consideration in this case.

Section 182(1)(e) – If the plan is for a redevelopment - the amount to be paid to a dissenting owner is not less than whichever of the following is greater -

(i) the compensation value of the owner’s lot

(ii) an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan

58. The valuation evidence tendered in these proceedings comprises the valuations prepared by the Applicant and a valuation report prepared by the First Respondent. Neither of these valuers were cross-examined on their evidence. The values determined by each of the valuers indicated that, with respect to each dissenting owner, the amount to be paid to them exceeds the amount of the determined compensation value (as that term is defined in s 154 of the SSD Act).

59. Further, the valuation evidence discloses that whether the dissenting owners’ lots are valued on an individual basis, having regard to the particular features of each lot, or on a redevelopment of the whole of the strata plan with value determined on a proportionate basis having regard to unit entitlement, the amount offered to each dissenting owner exceeds such values. That is, the amount offered to each dissenting owner exceeds a reasonable determination of the market value of their lot either individually or as part of a total sale price.

60. In addition, the SRP settlement provisions allow for the payment of an additional amount in the event that the developer obtains development consent for a project that achieves a higher yield than anticipated in the contract. In which event, the developer is required to pay to each owner (supporter or dissenter) a sum proportionate to the unit entitlement that owner held: Special Condition 37 of the proposed contract for sale forming part of the SRP.

61. The requirements for satisfaction under s 182(1)(e) of the SSD Act are not at large but require a determination of a base value quantum having regard to the two identified valuation exercises, that is, a determination of which produces the higher quantum of the two, and then a comparison as between what is offered to the dissenting owner and what would have been offered in the event of that owner being a supporting owner.

62. I note that whilst the objections filed in the proceedings contend that the amount of compensation to be paid should be higher it is not contended in any of the objections that the amount offered to the dissenting owners differs from that offered to a supporting owner. I further note that no valuation evidence was tendered by the objecting owners to substantiate the assertion of a higher value. Absent such evidence, I accept the unchallenged evidence of the valuers tendered in the proceedings, which valuations largely supported the approach undertaken by each valuer individually and supported the quantum of that offered by the Second Respondent in the SRP.

63. Annexure E to the SRP sets out the terms of settlement including the base price to be paid to each lot owner. Those prices are stated to be determined based upon unit entitlement. What is disclosed is that each owner, whether supporting or dissenting, was offered an amount consistent with a proportion of the total amount determined by unit entitlement only. On that basis, the evidence is that the same amount would have been achieved by the dissenting owners if they had supported the SRP.

64. For the reasons identified above, I am satisfied that the amount to be paid to the dissenting owners is not less than whichever of the following is greater: the compensation value of the owner’s lot; and an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan.

Section 182(1)(f) – If the plan is for a redevelopment - the terms of the settlement under the plan, as those terms apply to any dissenting owner, are just and equitable in all the circumstances

65. The provisions of this section relate to the terms of settlement under the SRP, as distinct from the quantum of settlement (which is addressed in s 182(1)(e) of the SSD Act above). The matter for consideration is whether the terms that apply to a dissenting owner are just and equitable. Having regard to the scope and purpose of the SSD Act, the evaluation of justice and equity is not an enquiry at large, but rather an enquiry to ensure that a dissenting owner is not treated differently than a supporting owner with the effect that the terms that apply to the dissenting owner render injustice or inequality when compared to the terms offered to the supporting owners. I agree with and adopt the findings as to the meaning of the concept of just and equitable as identified by Pritchard J in Chimes at [139]-[140] in the following manner:

139 The phrase “just and equitable” in cl 36 of the SSD Regulation is also used in s 461(1)(k) of the Corporations Act 2001 (Cth) which gives the Court power to order that a company be wound up if it is just and equitable to do so. In the Matter of Catombal Investments Pty Ltd at [19]-[20] Brereton J said of the concept of “just and equitable”:

…Although the concept "just and equitable" is a broad one incapable of exhaustive definition, conventionally the decided cases are recognised as falling into a number of classes, including in particular: (1) failure of the substratum of the company; (2) deadlock or disagreement in the management of the company's affairs; (3) fraud in the formation of the company; (4) misconduct by the directors of the company; (5) constitutional and administrative vacuum in the management of the company; and, (6) lack of confidence, fairness and public interest and commercial morality.

20. However, the Court is not restricted in exercising its discretion to particular factual categories [Re Straw Products Pty Ltd [1942] VLR 222, 223]. And, the question whether it is just and equitable is a question of fact, in respect of which each case must depend on its own circumstances [Re Bleriot Manufacturing Aircraft Company Ltd (1916) 32 TLR 253, 255]. The words “just and equitable” are general words, which must remain general, and the applicant is entitled to rely on any circumstances of justice and equity that affect him or her in his or her relations with the company or shareholdings [Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 (“Ebrahimi”), 374], at least so long as those circumstances have a direct and immediate relationship to, or bearing upon, the management or administration of the affairs of the subject company, or the conduct of its business [Re Nestor Pty Ltd (1981) 6 ACLR 114, 119 (Powell J).

140 The expression “just and equitable” is also used in the context of property settlement orders in family law. In Stanford v Stanford French CJ, Hayne, Kiefel and Bell JJ said at [36]-[38], of the expression (footnotes omitted):

36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 [of the Family Law Act 1975 (Cth)] is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.

37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. …

38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. …

66. In this case, the terms offered are substantially the same as to the dissenting owners and the supporting owners, the only material difference being that the dissenting owners are compelled to enter into the relevant terms by operation of the Court order, as opposed to a voluntary agreement to the terms. I find that the compulsion of a court order is within the legislative contemplation of the scheme such that any difference in the method of engaging the terms does not render the terms of settlement unjust or inequitable. The terms of settlement otherwise do not differentiate between a dissenting or supporting owner, therefore I find that the terms of settlement as they apply to a dissenting owner are just and equitable in the circumstances.

Section 182(1)(g) – Any other matter prescribed by the regulations

67. Clause 36 of the Regulation provides that:

36 Decision of court

For the purposes of section 182 (1) (g) of the Act, a court must be satisfied that the effects of the strata renewal plan are just and equitable in all the circumstances despite any difference between a valuation contained in the plan and any valuation that accompanied the application for an order to give effect to the plan.

68. The legislative regime anticipates that valuations will be prepared at different times: ss 179(e)(ii) and 179(f)(iii) of the SSD Act and cl 33(c) of the Regulation. As a result, there is a chance that the valuations will differ. Clause 36 of the Regulation requires an assessment of just and equitable effects of the SRP despite the difference in the quantum of the valuations.

69. In this case, there was a difference between the valuations, the latter being in the order of $200,000 less than the initial valuation.

70. I have considered whether the effects of the SRP are just and equitable notwithstanding the difference between the valuation and I find that the effects of the SRP are just and equitable. My finding is based upon the fact that the total quantum offered by the SRP exceeds the higher valuation and therefore there is no material consequence of the differing amounts of the valuations.

Section 182(2) – Variation of the SRP

71. If the Court was of a mind to vary the SRP, the provisions of s 182(2)-(3) of the SSD Act would be operative. As I do not intend to vary the SRP, the subject of the Application, these matters do not arise for consideration.

Remaining matters raised by objections

72. The objections as they raised matters relating to the relationship between Mr Perilli and Mr Wellman have been addressed above. Further, to the extent that the objections contended for a higher quantum of compensation, such objections have also been addressed above.

73. The objections raised additional matters which I summarise into topics as follows:

74. Failure to consider:

(a) A competing strata renewal proposal prepared by Growthbuilt: Ms Stamateris’ objection at [3]-[5] and [8]-[11] and Ms Mottram and Mr Artuphel’s objection at [2]-[4] and [7]-[11]; and (b) An urban renewal option in conjunction with adjoining strata schemes: Mr Alexander’s objection at [6] and [8];

2. Unreasonable motivation for support for the SRP relating to the maintenance requirements and cost for upgrading the current buildings in the strata plan: Ms Stamateris’ objection at [15]-[17]; Ms Mottram and Mr Artuphel’s objection at [14]-[16]; and Mr Alexander’s objection at [4]-[5]; and

3. Issues relating to the governance of the strata plan both generally and in particular with respect to the SRP process: Mr Alexander’s objection at [6] and [10]-[11] together with his affidavit. Mr Alexander refers specifically to alleged breaches of cl 4 Pt 2 of Sch 1 of the Strata Schemes Management Act 2015 (NSW).

4. The objections do not identify the manner in which each of these topics arise for consideration under the mandatory requirements of s 182 of the SSD Act. As identified above, if the Court is satisfied of the matters identified in s 182(1) it must make an order giving effect to the SRP. Having regard to the statutory language of that provision I find that there is no general or residual discretion vested in the Court to decline to make an order for reasons beyond those prescribed in s 182(1).

5. I will address each of these topics in turn.

Failure to consider alternative options

Growthbuilt

76. The objections contend that a development company, Growthbuilt, submitted a strata renewal proposal to the strata plan, which proposal was not permitted to be properly considered by the owners of SP 1998.

77. The evidence before me establishes that:

78. The strata committee considered the First Respondent’s strata renewal proposal at its meeting of 8 March 2023 and resolved that the proposal warranted further consideration by the owners corporation;

79. A general meeting was held on 27 April 2023 which resolved to investigate the proposal and formed a Strata Renewal Committee;

80. After that period further offers were received. Mr Wellman in his affidavit of 1 July 2025 recites events upon receiving such offers at pars 11 and 12 in the following terms:

11 In the subsequent period during which the SRC prepared the SRP, the Owners Corporation reviewed, considered and obtained advice on other offers, including D.velop.R Pty. Ltd and Growthassets Pty Ltd (Growthbuilt). The offer most substantially considered by the Owners Corporation during this time was that of Growthbuilt, which the Owners Corporation resolved to investigate through the SRC and Strata Committee at the General Meeting of 4 March 2024, the minutes of which are included at pages 147-156 of exhibit DW-1.

12 Following the investigation and taking of advice in respect of Growthbuilt's offer, in light of litigation on foot in respect of repair and maintenance of common property and the substantial delay that would be caused by abandoning the Strata Renewal process underway with Perifa to restart with Growthbuilt, a vast majority of owners resolved at the General Meeting of 15 May 2024 to take no further action in relation to Growthbuilt, the minutes of which are included at pages 157-165 of exhibit DW-1 .

78. The minutes of the general meetings of SP 1998 indicate that the alternative offers were presented and considered. The decision as to whether to proceed with an alternative offer was put to a vote. The voting reflected a decision not to pursue an alternative proposal.

79. The evidence is also clear that, apart for the First Respondent, no other party submitted a strata renewal proposal in accordance with the provisions of s 156 of the SSD Act and cl 30 of the Regulation.

80. Having regard to the consideration by the owners of SP 1998 of the options available to it and the determination of the offer that the owners of SP 1998 wished to pursue through a voting process undertaken at a general meeting I am not satisfied that the dissenting owners have established, on the evidence, that the Growthbuilt offer was not considered by the owners of SP 1998.

81. Section 156 of the SSD Act and cl 30 of the Regulation identifies the manner in which a proposal is to be made and the mandatory contents of such a proposal. The evidence is clear, the Growthbuilt interest in SP 1998 was not legally sufficient to comprise a strata renewal proposal. Absent such a proposal the strata committee was not legally obliged to consider the Growthbuilt interest as required by s 157 of the SSD Act.

82. Accordingly, I find that the substance of this objection does not raise a matter to which the considerations identified in s 182(1) of the SSD Act relate and are therefore not relevant to the determination of the application to apply for an order giving effect to the SRP.

Urban renewal

83. Mr Alexander indicated that, if redevelopment of SP 1998 was to occur, he preferred a proposal that had the object of redeveloping a broader locality by incorporating a redevelopment of SP 1998 together with other strata plans in the immediate vicinity.

84. Whilst Mr Alexander contended that this option was open and capable of being pursued, there is no evidence that such a proposal was formulated in any real or concrete proposal. Mr Alexander contended that he wished this matter to be considered by SP 1998, this desire has not been particularised in a way that relates to the considerations posed by s 182(1) of the SSD Act such that it can be identified as a relevant consideration.

85. I accept the submission of the Applicant that Pt 10 of the SSD Act does not require the Court to select between competing commercial development strategies, that is a matter for a strata plan. The SSD Act requires the Court to determine whether the SRP proposed in the Application satisfies the mandatory statutory consideration contained in s 182.

86. For the above reasons, I am not satisfied that the objections in so far as they contend a deficiency in the consideration of an alternative development option is established on the evidence or that it has been relevantly established as a statutory consideration, satisfaction of which is a precondition to the determination to give effect to the SRP.

Maintenance of SP 1998

87. Each of the objectors contend that SP 1998 could have been repaired and maintained rather than redeveloped. Again, the objectors have not identified by reference to the relevant considerations, how this complaint relates to the statutory consideration to be undertaken.

88. The evidence is clear, the buildings were in need of repair and renovation to the common property, largely relating to the balconies of each building. The Applicant had undertaken an assessment of the necessary repairs, obtained tenders for the works and undertaken a pilot programme to determine the extent of repairs required. It is also clear that the Applicant considered the scope and cost of such necessary repair and maintenance works and a reasonable timeframe in which such works would need to be undertaken. Notwithstanding the availability of this option the decision was made not to pursue it.

89. Again, it is open to a strata plan to make decisions (properly made in accordance with the relevant legislative provisions). The fact that a strata plan makes a decision that not all owners agree is anticipated by the SSD Act. Provided that the minimum level of support is achieved, a decision is not required to be unanimous. In this case, the remaining dispute as to maintenance and repair reflects that the decision made in this case was not unanimous. Whilst the dissenting owners may have preferred another outcome, without identifying some relevant connection to the mandatory relevant considerations, such complaint does not inform the task to be undertaken.

Governance

90. This objection was not particularised so as to enable it to be relevantly directed to a particular consideration.

91. It is apparent that Mr Alexander, in particular, had a long and productive relationship with the owners corporation through his participation in the governance of SP 1998 in the past. His efforts in that regard have not been disputed. Mr Alexander considers that in some respects meetings were not conducted in a manner appropriate to the seriousness of the matters under consideration with comments “mumbled”, inadequately explained or matters being prevented from being raised. These matters of meeting procedure are matters for SP 1998. Unless some legal inadequacy is identified such that the decisions made by SP 1998 are not proper decisions at law, the conduct of meetings and the like, are matters for the chair of the meeting to control, they are not matters that inform the determination that is required to be made under s 182 of the SSD Act.

92. Accordingly, for the above reasons, I find that the objections made by the objecting owners do not satisfy me that the matters for which I am bound to consider under s 182 of the SSD Act have not been satisfied.

Section 182(4B) – In considering an objection to the application for the order, the court must consider whether the person who filed the objection did not file the objection in good faith, including because of a conflict of interest

93. I have addressed the substance of the objections as they relate to the matters for consideration above. In considering the objections to the Application there was no suggestion in the evidence that such submissions were not made in good faith, including because of a conflict of interest. Accordingly, having considered the evidence I am satisfied that no such issue arises for consideration in this case.

The terms of the final orders under s 183 of the SSD Act

94. For the reasons outlined above, I am satisfied of the matters set out in s 182(1) of the SSD Act and as a consequence, I must make an order giving effect to the SRP. In addition, for procedural clarity addressing the practical consequences of such order I am satisfied appropriate orders anticipated by s 183 should also be made.

95. The Applicants provided Short Minutes of Order of the orders sought in these proceedings. Whilst I am satisfied that the substance of such orders are appropriate, I have made changes to the form of order to better reflect the decision made.

Costs

96. As to the costs of the proceedings, s 188 of the SSD Act provides:

188 Costs of proceedings

(1) Unless the court otherwise orders—

(a) the owners corporation must pay the reasonable costs of proceedings for an application for an order to give effect to a strata renewal plan incurred by a dissenting owner, and

(b) the owners corporation must not levy a contribution for a part of the costs of the proceedings on a dissenting owner.

(2) If the court is satisfied a dissenting owner has a conflict of interest that makes it inappropriate, in the court’s opinion, for the owners corporation to pay the owner’s costs, the court must make an order requiring the owner to pay—

(a) the owner’s costs, and

(b) any contribution for a part of the costs of the proceedings levied on the owner.

(3) The court may make a costs order against a dissenting owner if the court considers it appropriate to do so, including if the court considers the owner has not acted in good faith in failing to give, or withdrawing, a support notice.

(4) The court may order that costs be assessed on the ordinary basis or an indemnity basis.

(5) The regulations may prescribe other matters relating to the costs of proceedings for an application for an order to give effect to a strata renewal plan.

97. The parties have agreed upon a fixed sum costs order to be paid by the First Respondent to the Second Respondent. Otherwise, it is proposed that there be no other orders as to costs. I am satisfied that the agreed costs order is appropriate in the circumstances of this case and will make that order.

Orders

98. The Court makes the following orders:

99. An order under section 182(1) of the Strata Schemes Development Act 2015 (NSW*)* (SSD Act) giving effect to the Strata Renewal Plan for the redevelopment of the lots and common property in Strata Plan No. 1998 (SP 1998) as provided in the application made pursuant to s 179 of the SSD Act and filed on 11 July 2025 (SRP).

100. An order pursuant to clause 37 of the Strata Schemes Development Regulation 2016 (NSW) that:

(a) each dissenting owner sell their lot to Perifa Gerrale Pty Ltd ACN 672 856 058 (the Developer) on the sale terms in accordance with the SRP, including 3.8 of the SRP, by signing and exchanging a contract for the sale and purchase of land (Contract) within fourteen (14) days of that order being made; (b) the completion date under each Contract pursuant to the SRP and such order is twelve (12) months (Completion Date) after the date on which contracts are exchanged; and (c) if any owner the subject of this Order 2 fails to execute any necessary document or to take any necessary step in order to give effect to Order 2, the Registrar of the Land & Environment Court shall be empowered to so act in their place.

3. An order under section 185(7) of the SSD Act that any lease of a lot in the SP 1998 still current as at the Completion Date for such the sale of such lot is terminated on the Completion Date, with the Developer to pay any relevant compensation arising as a result of the termination of such lease (that is, break fees).
4. An order under section 183(1)(f) of the SSD Act that a distribution of the assets of the owners corporation, specifically the balance of the Administration Fund and the Capital Works Fund (as those terms are defined in the Strata Scheme**s Management Act 2015 (NSW)) of the SP 1998, occur by way of adjustment in favour of each lot owner upon completion of their respective contracts in proportions equivalent to their unit entitlements.
5. An order under section 183(1)(a) of the SSD Act that the SP 1998 be terminated on the day after the final Completion Date.
6. An order under section 183(1)(c) and (d) of the SSD Act that the funds of the owners corporation as exist at the termination of the SP 1998 be directed to discharge any liabilities of the SP 1998, with any shortfall to be met by the First Respondent as the sole owner of the lots at that time.
7. An order under section 183(1)(e) of the SSD Act that upon termination of the SP 1998 the balance of assets of the owners corporation are distributed on a proportionate basis equivalent to unit entitlement to all lot owners.
8. An order that the First Respondent pay the Second Respondent’s costs, fixed in the sum of $40,000, otherwise, no order as to costs.

Annexure A

Annexure B

**********