The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd

(6) Save as provided above, the appeal is dismissed. Catchwords: LAND LAW - Strata Scheme - subdivision and transfer of common property - agreement to transfer - common property - agreement to grant of exclusive use rights - enforceability of agreement - certificate issued under Strata Schemes Development Act - conclusive evidence - when certificate operates - power of Tribunal to determine dispute concerning transfer of common property - power of Tribunal to make orders for the registration of an exclusive use by-law. LAND LAW - Strata schemes -power of the Tribunal to make order under the Strata Schemes Management Act excluding a successful lot owner from being levied in respect of an award of damages and costs - operation of ss 90 and 104 of the Strata Schemes Management Act - scope of power under s 232 of the Strata Schemes Management Act. Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Conveyancing Act 1919 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Strata Schemes and Development Act 2015 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) (repealed) Strata Schemes Management Act 1996 (NSW) (repealed) Strata Schemes Management Act 2015 (NSW) Cases Cited: Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 Black v Garnock [2007] HCA 31; (2007) 230 CLR 438 Breskvar v Wall [1971] HCA 70; 126 CLR 376 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Deane v The City Bank of Sydney [1904] HCA 44; 2 CLR 198 Ferguson v John Dawson & Partners (Contractors) Ltd [1976] WLR 1213 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Maywood Aust Pty Ltd v Owners SP 85338 (No. 3), SC 1712874 (unpublished) Owners of Strata Plan No 80412 v Vickery (No 2) [2019] NSWCATAP 97 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 The Owners - Strata Plan No. 37762 v Pham [2006] NSWSC 1287 Vickery v The Owners - Strata Plan No. 80412 [2020] NSWCA 284 Texts Cited: Nil Category: Principal judgment Parties: The Owners Strata Plan No 74698 (Appellant) Jacinta Investments Pty Ltd (Respondent) Representation: Counsel: V Kerr SC, N Apkarian (Appellant) B Mason (Respondent)

Solicitors: Sachs Gerace Lawyers (Appellant) Ashurst (Respondent) File Number(s): 2020/00370875 formerly AP 20/28142 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 1 June 2020, 29 June 2020, 20 July 2020 Before: G Burton SC, Senior Member File Number(s): SC 19/00024; SC 19/24115

Introduction

1. The appellant is the owner's corporation of Strata Plan No. 74698. The respondent is a lot owner in that strata scheme.
2. The respondent filed Strata proceedings SC 19/00024 seeking damages against the appellant arising from the appellant's failure to comply with its obligations under Section 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA). In addition, in those proceedings the respondent claimed it was entitled to orders in connection with the registration of a plan of subdivision and for the transfer to it of certain common property. It also asserted "exclusive use" rights to use common property.
3. The appellant filed application SC 19/24115. In that application the appellant sought orders that the respondent: 1. remove from common property various chattels; and 2. remove and make good unauthorised alterations and additions to the common property.
4. The proceedings were heard in October 2019. The Tribunal made orders in respect of the applications on 1 and 29 June and 20 July 2020. Relevantly, these orders were: 1 June 2020 1. Order that the respondent owners corporation (OC) pay the applicant owner/lessor $266,018.80 on or before 42 days after the hearing in order 5. …. 3. Order the OC promptly to do all acts on its part (including the withdrawal of any request not to register or record, the withdrawal of any caveat concerning registration or recording, and answering or facilitating or assisting in the answering of any existing requisition and any further requisition) to record in the Register: (a) the amended strata scheme the subject of a Strata Plan Administration Sheet concerning "Plan of Subdivision of Lot 83 and Common Property in SP 74698" and a Transfer from the OC to the applicant owner Jacinta Investments PL dated 2 February 2016 with dealing number AK204891V, pursuant to s 246 of the Strata Schemes Management Act 2015 (NSW); and (b) a common property rights by-law in favour of Lot 84 in the amended strata scheme described in order 3(a) in respect of any areas (if any) that are designated as shaded areas called "Area of encroachment" on the survey drawing in the report of Stewart Dixon dated 9 July 2019 but which are not included within Lot 84, with Lot 84 being responsible under that by-law for the maintenance and repair of the area covered by that common property rights by-law, pursuant to s 246 of the Strata Schemes Management Act 2015 (NSW). … 29 June 2020 … 2. Confirm as the final order the provisional view expressed in order 2 on 1 June 2020 so that the final order is: "Order, pursuant to ss 90, 104, 229(a), 232, 240 and 241 of the Strata Schemes Management Act 2015 (NSW), that the amount payable by the OC to the applicant owner/lessor under order 1 made 1 June 2020 and confirmed as to date of payment 29 June 2020, any amount payable by the OC to the applicant owner/lessor in respect of costs of the proceedings, and the costs and expenses of the OC in respect of the proceedings, are not to be paid out of any monies or funds contributed to by the applicant owner/lessor and are to be paid only out of levies against owners other than the applicant owner/lessor". 20 July 2020 In both proceedings in respect of costs, in addition to existing orders affecting payment of costs: 1. Order that the OC is to pay 80% of the lessor's costs of the two proceedings heard together on the ordinary basis as agreed or assessed.

Background to dispute

1. It is appropriate to set out a brief history of what gave rise to these applications.
2. The respondent is the owner of Lot 83 in Strata Plan SP 74698. This lot constitutes commercial premises on which is conducted a cafe/restaurant business. The lot was acquired in 2006/7. It was leased by the respondent to various operators of the cafe/restaurant business. Around the Lot on two sides was an area of common property. The Tribunal described these areas in its reasons at [5]- [6] in the following terms: 5 … The first of those areas comprise parts of a patio between the lot and each street frontage (the patio wrapped around the corner and extended along each street frontage). The second comprised a roughly rectangular area at the rear of the lot bounded by a "storage cage" with some sheeting amid wire surround that was not permanently fixed into the building structure (the storage area). 6. In respect of the claimed common property, the patio area was enclosed between 2009 and 2014 by [the respondent] and/or by [the respondent's] lessee with [the respondent's] consent. The enclosure comprised clear panels that formed a roof where there was not a balcony immediately above the patio and windows between the external pillars of the building, effectively encompassing the enclosed parts of the patio with the restaurant. A wall between the patio and the restaurant on the southern street side was partially demolished. The storage area was enclosed in the same period.
3. As recorded by the Tribunal in its reasons at [7] and following, the respondent claimed there was an oral agreement in early 2009, followed by resolutions of the appellant on 20 January 2009 and 1 April 2009 by which the respondent was granted exclusive use rights to the claimed common property. Further, the respondent claimed that on 24 December 2014 the appellant passed resolutions which authorised the transfer of the common property referred to above to the respondent. The common property and Lot 83 were to become a new Lot 84 by means of the lodgement of an amended plan of subdivision.
4. Following the initial lodgement of the plan of subdivision, which needed to be uplifted because of requisitions made by the Registrar General, the appellant lodged a caveat in respect of the common property preventing the plan of subdivision being re-lodged for registration.

Notice of Appeal

1. The appeal was lodged in time, on 29 June 2020. The Notice of Appeal was subsequently amended, the amended Notice of Appeal being dated 3 August 2020.
2. In respect of order 3 made 1 June 2020, concerning registration of the strata plan of subdivision, the grounds of appeal were as follows: Jurisdiction 4 The Tribunal erred at law in finding that it has jurisdiction under section 232(1)(a), (d) or (f) of the Act to order an owners corporation to do all acts on its part to record a strata plan of subdivision in the Register (order 3(a) on 1 June 2020). (Reasons [218] to [223]). 5 The Tribunal erred at law in finding that it has jurisdiction under section 232(1)(a), (d) or (f) of the Act to order an owners corporation to do all acts on its part to record a transfer of common property to a lot owner in the Register (order 3(a) on 1 June 20201. (Reasons [216] to [223]). 6 The Tribunal erred at law in ordering an owners corporation to do all acts on its part to record in the Register a strata plan of subdivision and a transfer of common property to a lot owner (order 3(a) on 1 June 2020), the effect of which was to determine title to land other than for the purpose of deciding a matter under the Act in breach of section 239(1) of the Act. (Reasons [221], [229]). 7 The Tribunal erred at law in finding that it has jurisdiction under section 232(1)(a), (d) or (f) or section 240 of the Act to order an owners corporation to do all acts on its part to record a common property rights by-law in the Register (order 3(b) on 1 June 2020). (Reasons [225], [292]). 8 The Tribunal erred at law in finding that it has jurisdiction under section 229(a) of the Act to order an owners corporation to withdraw a caveat that precluded the registration of a strata scheme of subdivision or transfer of common property in the Register (order 3 on 1 June 2020). (Reasons [224]). 9 The Tribunal did not have jurisdiction to make order 3 on 1 June 2020. Oral agreement; 2009 minutes 10 The Tribunal erred at law in finding that the appellant and respondent entered into an oral agreement pursuant to which the respondent agreed to transfer to the appellant the claimed common property, or any part thereof, in accordance with the Strata Plan of Subdivision and Transfer. (Reasons [241 ff]) 11 Alternatively, the Tribunal erred at law in finding that the 2009 minutes constituted; a. the creation or disposition of the claimed common property to the respondent by writing signed by the appellant or its agent thereunto lawfully authorised in writing within the meaning of s 23C(1)(a) of the Conveyancing Act 1919 (NSW) b. a memorandum or note of the oral agreement signed by the appellant or some other person lawfully authorised by the appellant within the meaning of s 54A(1) of the Conveyancing Act 1919 (NSW). (Reasons [246]). 12 The Tribunal erred at law in finding that the 2009 minutes were sufficient to establish the by-­law referred to in order 3(b) on 1 June 2020 as a valid by-law. (Reasons [268], [292]) 13 The Tribunal erred at law by failing to finding that the appellant did not, by the resolutions referred to in the 2009 minutes, make the by-law referred to in order 3(b) on 1 June 2020 in accordance with s 52(1) of the Strata Schemes Management Act 1996 (NSW) (1996 Act), (cf Reasons [268], [292]) 2014 meetings Strata PIan Administration Sheet; Transfer 14 The Tribunal erred at law in finding that the respondent was a person entitled by s 28(4) of the Strata Schemes (Freehold Development) Act 1973 (NSW) (SSFD) to rely upon certificates by the appellant dated 24 December 2014 and 14 October 2015 on the Strata Plan Administration Sheet as conclusive evidence of the facts stated therein. (Reasons [233]) 15 The Tribunal erred at law in finding that defects concerning the resolutions recorded in the 24 December 2014 minutes (including the lack of a quorum as required by clauses 12(1) and (2) of Schedule 2 of the 1996 Act) are irrelevant. (Reasons [233]) 16 The Tribunal erred at law in finding that any resolution recorded in the 24 December 2014 minutes: a. entitled the respondent to have the claimed common property, or any part thereof, transferred to it in accordance with the Strata Plan of Subdivision and Transfer b. required the appellant to register the Strata Plan of Subdivision under s 9(1) of the SSFD c. required the appellant to register the Transfer under s 25(4) of the SSFD d. was effective to make a common property rights by-law for the claimed common property, or any part thereof, as referred to in order 3(b) on 1 June 2020 e. required the appellant to register a common property rights by-law as referred to in order 3(b) on 1 June 2020 under s 48 of the 1996 Act. (cf Reasons [239], [269] ff) 17 The Tribunal erred at law by failing to finding that the Strata Plan Administration Sheet does not comply with s 9(3) of the SSFD and thus cannot be registered as a strata plan of subdivision under s 9(1) of the SSFD. (cf Reasons [273]ff) 18 The Tribunal erred at law by failing to finding that the appellant had not authorised the execution of the Transfer by special resolution within the meaning of s 25(1) of the SSFD, with the consequence that the Transfer cannot be registered as a dealing under s 25(4) of the SSFD. (cf Reasons [291]) 19/24115 - removal and reinstatement of claimed common property 19 The Tribunal erred at law by failing to order the respondent to remove its belongings from and remediate the claimed common property. (Reasons [295])

Consideration

1. It is convenient to deal with this appeal under two headings: 1. The common property dispute: 2. Power to make orders concerning levying the respondent.

The Tribunal's decision

1. The Tribunal dealt with the common property dispute in its reasons at [207] and following.
2. The Tribunal noted that there were two parts to this dispute. Firstly, that the respondent claimed it was entitled to a transfer of various common property that, together with the then Lot 83 was to form part of a new Lot 84 proposed to be created by the lodgement of the plan of subdivision said to have been agreed and approved at the extraordinary general meeting of the appellant held 24 December 2014. The plan of subdivision is found at Appeal Bundle (AB) AB 1008 and following, new Lot 84 on the ground floor being depicted at AB 1013. The agreement to transfer was said to have been reached in 2009 and recognised in the resolution passed at the general meeting of the applicant on 1 April 2009.
3. Secondly, the respondent claimed in the alternative that it was entitled to have registered a special by-law for the use of common property in the areas depicted in the survey carried out in 2019 attached to the letter dated 9 July 2019 found at AB 1076 and following. This survey showed areas then occupied by the respondent, which the respondent said was the subject of the agreement in 2009. The resolution of the owners corporation of 1 April 2009 was said to have approved the by-law referred to an attached plan showing the areas the subject of the agreement. However, this plan could not be found and was not in evidence. The by-law said to have been created in 2009 had not been registered. The respondent sought a declaration that there was such a by-law and orders to compel the appellant to take steps to record the by-law.
4. In short, the Tribunal found that there was an agreement to transfer common property to the owner of Lot 83 and thereby create new Lot 84 and an agreement for the creation of a special use by-law in respect of common property in favour of the owner of Lot 83.
5. In consequence of these findings, and in recognition of the fact that the proposed transfer of common property to the owner of Lot 83 recorded in the plan of subdivision did not include the whole of the area for which the special use by-law had been created, the Tribunal made orders 3(a) and 3(b) in favour of the respondent. Order 3(a) related to the transfer of common property and registration of the plan of subdivision to create Lot 84. Order 3(b) was an order that the owners corporation create a special use by-law for that part of the land otherwise the subject of the resolution passed on 1 April 2009 that was not the subject of the plan of subdivision approved on 12 December 2014.

Appellant's Submissions

1. A list of issues was filed by the appellant pursuant to orders made by the Appeal on 17 November 2020. This list summarised the issues for determination as follows: 1. Whether, by operation of s 28(4) of the Strata Schemes (Freehold Development) Act 1973 (NSW) (repealed) (1973 Development Act), a certificate relied upon by the respondent was conclusive evidence of the facts stated therein, namely that a relevant special resolution had been passed by the appellant at its general meeting. 2. Whether the Tribunal erred in finding that the appellant and respondent entered into an oral agreement in about 2009 pursuant to which the appellant was bound to: 1. register the subdivision plan; 2. transfer common property the subject of order 3(a) 1 June 2020 the respondent; and 3. make a common property by-law in favour of the respondent in respect of the common property the subject of order 3(b) made 1 June 2020. 1. Whether the Tribunal erred in finding the appellant had made a special resolution at one or other of two meetings in 2009 pursuant to which a common property rights by-law in favour of the respondent's Lot in respect of the common property identified in order 3(b) made 1 June 2020 (depicted in the 2019 sketch). 2. Whether the Tribunal erred in finding that the appellant had passed a special resolution meeting on 24 December 2014: 1. consenting to the subdivision of the respondent's Lot and common property; 2. agreeing to the individual and aggregate unit entitlements stated in the subdivision plan; and 3. agreeing to execute a transfer of common property to the respondent. 1. Whether the Tribunal erred in finding it had jurisdiction to order the appellant to do all acts on its part concerning the registration of the plan of subdivision and/or the common property rights by-law in favour of the respondent is required by order 3(b) made 1 June 2020. 2. Whether the Tribunal erred in failing to order the respondent to remove its belongings from and remediate the common property identified in the schedule referred to in order 3(b) made 1 June 2020.
2. Reference was made in the list of issues to the grounds of appeal which we have set out above.
3. The appellant's submissions can be summarised as follows.
4. The certificates referred to by the Tribunal in its reasons at [231]-[239] are not certificates referred to in s 28(4) of the 1973 Development Act and the "conclusive evidence" effect of certificates to which s 28(4) relates "does not … commence until registration of the relevant dealing or plan".

Respondent's Submissions

1. The respondent first made a general submission that a "substantial part of the [appellant's] defence to this claim depended on its own failings". These failings were said to include uncertain documents, inquorate meetings and minutes of meetings that were not properly signed or attested.
2. In relation to the conclusive effect of various certificates and the application of s 28(4) of the 1973 Development Act the respondents said: 1. The appellant's submission that s 28(4) only operates in respect of a dealing lodged for registration under Division 2 was not a submission originally made and should not now be permitted. 2. In any event, the respondents said Division 2 concerns common property. It addresses the vesting of common property (s 18), the acquisition of additional common property (s 19) and the transfer or lease of common property (s 25). In the present case, there was a transfer of common property. 3. The Form 9 certificate was in respect of this dealing. All that is required of such a certificate is a statement certifying there was a special resolution authorising the execution of the dealing and that the requirements of s 28(3)(a)(ii) were complied with. Any deficiency in the form of the certificate could be addressed by the Tribunal making an order under s 240 to require its proper execution. 4. In respect of the Form 11 and 12 certificates, having referred to the reasons at [234] and [236], the respondent submits that "the reasons given no indication that the Tribunal relied on the Form 11 and 12 certificates when finding in [the respondent's] favour. In any event, even if the Tribunal did refer to those certificates, the Form 9 certificate "remains unimpaired, and the Tribunal's reasoning cannot be impugned to the extent it relied on them". Further, the Form 11 and 12 certificates comprised "part of the context" when determining the intended meaning of the Form 9 certificate. 5. A certificate given under s 28(4) operates from the date it is signed, not when the dealing is registered. The certificate must accompany the dealing lodged for registration and must, therefore, be signed before lodgement. It is the act of signing that "confers the certificates with the status of being 'conclusive evidence' of the matters they address". As a matter of statutory construction, the certificate immediately operates in favour of the person taking under the dealing. If s 28(4) operated in the manner suggested by the appellant, it would be a redundant provision because once a dealing is registered "the need for a 'conclusive evidence' stipulation falls away". This is because the Torrens system is title by registration, not registration of title. In this regard a construction of the Act should be preferred "such that 'no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent". Reference was made to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. 6. Further, a construction of 28(4) that restricted its application to when a dealing had been lodged, but before the dealing was registered, "would significantly curtail the protection it is intended to provide to the Registrar-General once the dealing is registered. On that interpretation, the Registrar-General could readily be embroiled in claims regarding the appropriateness of registering a dealing on title". 7. Finally, the appellant's submission concerning the consequences of fraud or careless or mistaken execution of a certificate as supporting its construction of s 28(4) of the 1973 Development Act ought be rejected as there are "comprehensive arrangements" to address these issues such as protection is found in ss 45 and 118 of the RP Act as well as compensation provisions (ss 120 and 129) and provisions creating indictable offences for fraudulently procuring a recording in the Register (s 141). In addition, an owners corporation retains its claims in contract and tort against a careless strata manager as well as claims for misleading and deceptive conduct.

Analysis

1. The ultimate issue in respect of the common property dispute is whether the respondent was entitled to become the registered proprietor of proposed new Lot 84 which was to be created by the registration of the plan of subdivision as provided by order 3(a) made 1 June 2020 and whether Lot 84 was to have registered in its favour a common property rights by-law in respect of the area and on the terms set out in order 3(b) made 1 June 2020.
2. Alternatively, was the respondent entitled to exclusive use of various areas of the common property following an agreement and/or resolutions passed by the Owners Corporation in 2009.
3. If not, the appellant sought an order for removal of the patio enclosures and storage cage located on common property.
4. In this regard, the Tribunal recorded at [30] of the reasons: The [respondent/lot owner] resisted the claims for removal of the patio enclosures and the storage cage as they were said to be within the claimed common property. However, if it did not succeed in its claim to a part of the claimed common property then it consented to being ordered to remove the items within a reasonable period.
5. In deciding this appeal, it is necessary to identify the basis upon which the respondent/lot owner claimed it was entitled to the relief sought.

The Lot owner's claim

1. In its amended application (AB 37, paras 73-88) the respondent set out the following terms: 73 Prior to 2009, the common area adjacent to Lot 83 was observed as being in a disrepair and frequented by drug users, loiterers and other unwanted persons. 74 An agreement was made between the Applicant and Strata Manager, Tania Haidar of Platinum Properties Pty Ltd on behalf of the Owners Corporation, that the Applicant would be granted exclusive access to the common area in exchange for its repair and upkeep. 75 The agreement reached between the parties was that the Applicant would renovate the common area at their expense in consideration for the exclusive use of the area (the Agreement) 76 The Agreement arose under the scheme 77 The agreement was evidenced by conduct: Particulars The agreement to allow Lot 83 exclusive use of the properties evidenced by: (a) The EGM resolution of 20 January 2009. (b) The AGM resolution of 1 April 2009. (c) The Adjourned Extraordinary General Meeting resolution on 24 December 2014. (d) The [respondent/lot owner's] payment of stamp duty on 31 January 2016; and (e) The application made by the [respondent/lot owner] on 2 February 2018 to give effect to the transfer of exclusive use. 78 It was foreseeable that if the Owners Corporation breached the Agreement that the Applicant would suffer loss. 79 On 20 January 2009, it was resolved at an Extraordinary General Meeting (EGM) of the Owners Corporation that exclusive use of common property should be given to the Applicant. Further, at the 1 April 2009 AGM, it was resolved that Lot 83 would be given approval to redevelop the common area. 80 The Applicant redeveloped the common area at its own expense. 81 On 24 December 2014, the Adjourned Extraordinary General Meeting was held by the Owners Corporation where two resolutions were made: i. to resolve and authorise Lot 83 (Jacinta Investments) to lodge the new amended strata plan to council as per the attachment; and ii. to resolve and provide authority to the strata managing agent to affix the common seal on all required documents for the lodgement of the strata plan with council. 82 On 31 January 2016, the Applicant paid stamp duty in the sum of $1,799.50 to effect the transfer. 83 On 2 February 2018, the Applicant made an application to the NSW Civil and Administrative Tribunal seeking an order that the Owners Corporation consent to the "registrable documents" being lodged and an order that the Certificate of Title to the common property in SP 74698 be provided to the mortgagee of Lot 83 in order to enable an increase in mortgage entitlements. 84 On 8 July 2018, the Owners Corporation's lawyers alleged that the Applicant lodged a proposed transfer and subdivision of the common area to Lot 83. 85 In response, the Owners Corporation registered a caveat on SP74698 (AK578247k). 86 The Owners Corporation agreed to grant transfer and subdivide the common area to Lot 83. Once the strata management changed, that agreement was reneged upon. Instead a caveat was lodged. 87 The lodgement of the caveat was in breach of the Agreement and interfered with the use of common property. Particulars The agreement to allow Lot 83 exclusive use of the property is evidenced by: i. The EGM resolution on 20 January 2009; ii. The AGM resolution on 1 April 2009; iii. The Adjourned Extraordinary General Meeting resolution on 24 December 2014; iv. The Applicant's payment of stamp duty on 31 January 2016; and v. The application made by the Applicant on 2 February 2018 to give effect to the transfer of exclusive use. 88 Being an agreement arising under the scheme and, having been breached, impacting the enjoyment of that common property, the New South Wales Civil and Administrative Tribunal has jurisdiction under section 232(1), sub-sections (a) and (d) of the Act to made an order to settle this dispute.

The Lot owner's evidence

1. In respect of the agreement, said to have been reached in 2009 or "prior to 2009", and what occurred thereafter, Ms Taouk, the director of the respondent, gave the following evidence in her affidavit affirmed 8 May 2019 (AB 1070 and following): 72 Prior to 2009, the common area adjacent to Lot 83 was frequently used as a meeting place by drug users, loiters and other unwanted persons and had become difficult to keep clean. 73 An agreement was made between John Chahine and the Strata Manager, Tania Haidar of Platinum Properties Pty Ltd on behalf of the Owners Corporation. It was agreed that Jacinta Investments would be granted exclusive access to the common area in exchange for its repair and upkeep. It was stipulated that John [Ms Taouk's former husband] would be required to renovate the common area at his expense, in consideration for exclusive use of the area (the Agreement). 74 On 21 February 2009, it was resolved at an Extraordinary General Meeting (EGM) of the Owners Corporation that exclusive use of common property should be given to Jacinta investments. Further, at the 1 April 2009 AGM, it was resolved that lot 83 would be given approval to redevelop the common area. Annexed and marked'(1A) is a copy of the EGM resolution of 21 February 2009 and annexed and marked '(1B)' is a copy of the AGM and resolution on 1 April 2009. 75 In early May 2009, Mhanna Architects Pty Limited submitted the proposal to expand the restaurant (XXX, Bankstown) to Council. Work was also completed by Gary Edwards, who was the surveyor who conducted work on the property for the proposal. 76 After completing most of the works required for submission to Council, JC and I began to experience financial difficulty. This led to delays, which stalled the process. When we began to recover financially in 2014, John resumed the completion of the work and the preparation for the proposal to Council. We paid for all the work ourselves. It was obviously apparent that the work was being done and there was no objection by the Strata. 77 Eva Attie and Matthew Shad from Shad Partners Solicitors were the solicitors directing the action needed to finalise the submission to council and LPI Office (Land and Property Information). 78 JC and I were advised by the Strata manager that due to the time lapse in completing the work required, the documentation and plans had to be reapproved by the Body Corporate, even though they had already been previously approved and sealed. I consulted Tania Haidar (Platinum Properties who were the previous strata managers) in 2014 to take the appropriate action to approve the new strata plan and the unit entitlements. 79 Platinum Properties (Tania Haider) advised John and I that we were required to hold a meeting to have our plans approved by the Owners Corporation. She advised that to have by-laws approved, we required a special resolution, with 75% of the Owners Corporation agreeing to the motion. This was delayed several times, as there was no quorum. The meeting was adjourned and finally took place on 12/12/2014. Annexed and marked '(1D)' is a copy of the email between the Strata Manager & I regarding the process. 80 Platinum Properties sent all relevant documentation to the owners and landlords for consultation. 81 A meeting was held on 12/12/2014 at 4:30pm. Although there were several owners present, unfortunately there were not enough in attendance to vote on the resolution. The meeting was adjourned again to be held on 24/12/2014. This was communicated to all owners, who also had the right to vote by proxy. 82 On 24 December 2014, an Adjourned Extraordinary General Meeting was held by the Owners Corporation where two resolutions were made: (a) to resolve and authorise Lot 83 (Jacinta Investments) to lodge the new amended strata plan to council as per the attachment; and (b) to resolve and provide authority to the strata managing agent to affix the common seal on all required documents for the lodgement of the strata plan with council. 83 We were notified that due to the favourable number of proxy votes in favour of the motion, the documents would be approved by the Owners Corporation. The documentation was approved and stamped. Annexed and marked '(1C)' is a copy of the EGM resolution on 24 December 2017 and annexed and marked '(1E)' is a copy of the Cross Street Documents with Common Seal. 84 Jacinta Investments continued to gather documents to complete requisitions so that the proposal council be submitted to the LP Office.

The Lot owners submissions at first instance

1. In its submissions concerning the common property claim dated 21 October 2019 in the proceedings at first instance at AB 771 the respondent set out its position in the following terms: 3. The Common Property Claim 3.1 The wrongful placement of a caveat claim is pleaded at paragraphs 73 to 93 of the Amended Reasons. 3.2 The facts giving rise to the claim are set out in paragraphs 71 to 89 of the affidavit of Yvonne Taouk. 3.3 Prior to 2009, the common area adjacent to lot 83 was frequently used as a meeting place by drug users, loiterers and other unwanted people. 3.4 The Common Property Claim arises from an agreement between the Applicant and the Strata Manager, Tania Haidar of Platinum Properties Pty Ltd, on behalf of the Owners Corporation prior to 2009. The agreement was an oral agreement (evidenced in writing and by conduct) which provided that the Applicant would be granted exclusive access to the common property area adjacent to Lot 83 of Strata Plan 74698, 7-8 Cross Street, Bankstown (Common Property Area). In consideration for the exclusive use of the Common Property Area, the Applicant was required to renovate the area at its expense. 3.5 On 20 January 2009, it was resolved at an Extraordinary General Meeting of the Owners Corporation that the Applicant would be granted exclusive use of the Common Property Area. 3.6 Further, at the 1 April 2009 Annual General Meeting, it was resolved that the Applicant would be given approval to redevelop the Common Property Area. 3.7 The Applicant redeveloped the common area at its own expense. The work was carried out, in the main, in 2009 and completed in 2014. 3.8 The Strata Manager then determined that new documents and plans had to be approved by the Body Corporate. 3.9 On 24 December 2014, it was approved at the Adjourned Extraordinary General Meeting (with the necessary number of proxies to meet the special resolution requirements) that the Applicant be authorised to lodge the new amended strata plan to the council so that it may have an exclusive use of the common property. 3.10 The Applicant undertook the necessary procedures to lodge a new strata plan and have it approved. 3.11 It appears from the evidence of Andrew Abbott that the Owners Corporation had a change of heart in early February 2016. The Strata Manager was replaced.
2. In its outline of closing submissions dated 31 October 2019 at para 2 (AB 817) and para 75 (AB 837) the respondent said: 2. Similarly, the Owners Corporation's caveat over part of the common property has prevented Jacinta from becoming registered as the proprietor of that parcel since mid-2016. In doing so, the Owners Corporation seeks to resile from the agreement the parties reached in 2009, the resolutions passed at meetings on 20 January 2009, 1 April 2009 and 24 December 2014, and the steps subsequently taken in connected with these resolutions. … 75. Jacinta is entitled to be registered as the proprietor of part of the common property given the agreement it reached with the Owner's Corporation's strata managing agent, the resolutions the Owners Corporation passed on 30 January 2009, 1 April 2019 and 24 December 2014, and the steps taken in connection with these resolutions. Jacinta seeks: (a) a declaration that it is entitled to be registered on title as the property of that party of the common property; and (b) orders requiring the Owners Corporation to do all things necessary on its part so this transfer may be registered on title.

Relevant legislation

1. Transfer of common property to a lot owner to form a new lot requires both the lodgement of a plan of subdivision and a form of Transfer from the transferor to the transferee.
2. The plan of subdivision must identify the land to be transferred and the new or consolidated lot to be created as well as the common property which is to remain as common property.
3. Inter alia, ss 9-11of Division 1 Creation of lots and common property in the 1973 Development Act set out the requirements for the lodgement and registration of a plan of subdivision.
4. Division 2 Common property of the 1973 Development Act regulated dealing with common property. Section 21 of the 1973 Development Act provided: 21 Common property to be dealt with only under this Act and the Strata Schemes Management Act 1996 Common property shall not be capable of being dealt with except in accordance with the provisions of this Act and the Strata Schemes Management Act 1996.
5. In respect of the transfer of common property s 25 of the 1973 Development Act provided: 25 Transfer or lease of common property (1) A body corporate may, pursuant to a special resolution, execute a transfer or lease of common property other than common property the subject of a lease accepted or acquired by the body corporate under section 19 (2). …
6. Transfers are registered under the RP Act by the Registrar General. In respect of executing a transfer and registration thereof s 28 provided: 28 Effect of dealings under this Division (1) In this section dealing includes a plan referred to in section 27 (2). (2) A dealing executed by a body corporate for the purposes of the exercise of any of its powers under this Division shall be as valid and effective as it would be if it were also executed by the proprietors of all the lots the subject of the strata scheme concerned and the receipt of the body corporate for purchase money, rent, premium or other moneys payable to the body corporate in respect of the dealing shall be a sufficient discharge and shall exonerate every person paying any such moneys from any responsibility for their application. (3) A body corporate shall not execute a dealing for the purposes of this Division: (a) whereby the estate or interest of the body corporate or of the proprietors or any of them in the parcel or in any part thereof is diminished unless: (i) all persons (other than the body corporate and the proprietors) having interests recorded in the Register in the parcel or that part, as the case may be, have released them in so far as they affect the land the subject of the dealing or the dealing may properly be, and has been, made subject to those interests, and (ii) all persons having interests (other than interests referred to in subparagraph (i) or statutory interests) in the parcel or that part, as the case may be, being interests which have been notified to the body corporate, have released them as against the person taking under the dealing, not being a plan, or benefiting by the registration of the dealing, being a plan, or (b) unless any by-law to which Division 4 of Part 5 of Chapter 2 of the Strata Schemes Management Act 1996 applies and relating to the land the subject of the dealing has been: (i) repealed, or (ii) amended in so far as it would, but for the amendment, have detracted from the interest passing under the dealing. (4) A dealing lodged for registration under the Real Property Act 1900 or the Conveyancing Act 1919 for the purposes of this Division shall not be registered under either such Act unless it is accompanied by a certificate under the seal of the body corporate: (a) certifying that: (i) the resolution authorising the execution of the dealing was a special resolution, and (ii) the requirements of subsection (3) (a) (ii) were complied with, and (b) except where all lots concerned are held by the original proprietor or where a certificate under this paragraph or section 9 (3) (d) or 13 (2) (b) has been previously lodged in the office of the Registrar-General, or a certified or office copy of the minute of an order made under section 182 of the Strata Schemes Management Act 1996 authorising the registration of the dealing is so lodged, certifying that the resolution referred to in paragraph (a) was passed after the expiration of the initial period, and the certificate under the seal of the body corporate given for the purposes of this subsection shall be conclusive evidence of the facts stated therein in favour of the Registrar-General and any person taking under the dealing, not being a plan, or benefiting by the registration of the dealing, being a plan. (5) This section does not prevent the execution in accordance with section 28N of a dealing by a body corporate, or by a developer on behalf of the body corporate, to give effect to a decision about a development concern (within the meaning of section 28O) or prevent the registration of a dealing so executed.

Was there an agreement to transfer common property and is the Form 9 certificate conclusive evidence of a resolution to transfer common property to the Lot owner?

1. In our view there was no agreement between the appellant and the respondent to transfer the common property nor does the Form 9 certificate constitute conclusive evidence of a resolution to transfer common property to the Lot owner.
2. Our reasons are as follows.
3. At the outset, we should say that it is unclear from the Tribunal's reasons exactly when it is said an agreement was entered into between the appellant and the respondent to transfer the common property. However, an analysis of the evidence to which the Tribunal referred does not support a finding there was an agreement to transfer common property either in 2009 or at some time thereafter.
4. Further, the evidence does not support a conclusion that there was a special resolution passed by the owners corporation to transfer common property to the respondent.
5. Finally, Form 9 is not conclusive evidence of the fact a special resolution was passed to transfer common property and s 28(4) does not operate in the manner found by the Tribunal.
6. In relation to the events in 2009, the claim made by the respondent in the amended application (AB 37) was that there was an "agreement between the [respondent] and the Strata Manager, Tania Haidar … on behalf of the Owners Corporation, that the [respondent] would be granted exclusive access to the common area (emphasis added) in exchange for its repair and upkeep". It was not a claim that there was an agreement to transfer common property.
7. There was no direct evidence from Mr Chahine, the former director of the respondent, who was said to be the person to whom Ms Haidar had spoken. Rather, there was indirect evidence of the respondent's current director, Ms Taouk, who said in her affidavit at par 73 (AB 1070 and following): … It was agreed that Jacinta Investments would be granted exclusive access to the common areas in exchange for its repair and upkeep. It was stipulated that John [Ms Taouk's former husband)] would be required to renovate the common area at his expense, in consideration for exclusive use of the area (emphasis added) (the Agreement).
8. Otherwise, there is no evidence of any conversation at this time that the owners corporation would transfer to the respondent any common property.

Was there a grant of exclusive rights to occupy common property and, if so, was that grant by way of license or special by-law?

1. The answer to this question involves an examination of the resolutions passed on 20 January and 1 April 2009.
2. Having regard to the affidavit of Ms Taouk and in the absence of any other evidence, it is clear there was a discussion some time prior to the meeting on 20 January 2009. That discussion was between Mr Chahine on behalf of the respondent and Ms Haidar on behalf of the strata manager concerning a proposal to grant exclusive access to common property in favour of the respondent in exchange for its repair and upkeep. Thereafter, an extraordinary general meeting of the appellant was held on 20 January 2009 and an annual general meeting was held on 1 April 2002 at which the occupation of common property by the respondent was considered. In all there were three resolutions passed, one on 20 January 2009 and two on 1 April 2009.
3. As stated above, the resolution of 20 January 2009 was to "provide exclusive use of the common property and the storages (sic) downstairs as well as car parking spaces (as per the attached plan)" to the respondent. This was on the basis: All expenses for this change, paperwork, changes made through land titles office, surveyors, and change of by-laws etc. will be paid by Lot 83.
4. The resolutions of 1 April 2009 permitted the installation of an awning and provided for the cleaning and maintenance of the ground floor common area and lobbies and imposed noise limitations on the use of the area. There was also obligations imposed requiring the respondent "to keep all security and fire doors closed". These conditions, when read in context, imposed financial obligations upon the respondent in consideration for the exclusive use benefit conferred.
5. Having regard to these resolutions, dot point 2 (which related to levies and alteration of unit entitlements) should, in the absence of any evidence to suggest that there was an agreement to transfer common property or a resolution to do so, the dot point should be construed as nothing more than recognising the respondent would be responsible for the financial burden concerning cleaning and maintenance of common property that would otherwise have fallen to the appellant to meet by reason of the then s 62 of the 1996 Management Act (now s 106 of the SSMA).

Power to make orders concerning levying the respondent

1. The appellant says the Tribunal had no power to make what the appellant described as a "quarantine order", that is an order that prevented an owners corporation from levying a successful applicant in connection with both costs and expenses of proceedings.

Submissions

1. The appellant dealt with each of the sources of power upon which the Tribunal relied as justification for making order 2 set out above.
2. As to ss 90 and 104 of the SSMA the appellant said: 1. Section 90 is a power granted to "the court" and there is no reason to construe this expression as including the Tribunal. It is an undefined term, which must be construed in the context of the SSMA and the conferral by that legislation upon the Tribunal of express powers to make orders. The heading of the section does not form part of the SSMA: ss 34 and 35 of the Interpretation Act 1987 (NSW). In any event, the heading which refers to "proceedings between one or more owners of lots and an owners corporation" does not assist in interpreting what is meant by the expression "the court". 2. Section 104 "operates according to its own terms and does not provide power to the Tribunal to make an order. Reliance is placed on the decision of the Appeal Panel in Owners of Strata Plan No 80412 v Vickery (No 2) [2019] NSWCATAP 97(Vickery No 2) at [26].
3. As to the powers found in ss 232(1)(a) and (e) the appellant submitted: 1. The Tribunal was wrong to suggest these powers were sufficiently broad to encompass a quarantine order either when read with ss 90 and 104 or as an independent source of power. 2. There is no relevant complaint in the sense used in s 232 of the SSMA the resolution of which might engage the order making powers found in these sections. A resolution of any damages claim and a resolution of rights in connection with s 106(5) do not give rise to a dispute as to an owners corporation raising funds to pay for any damages award. 3. The Tribunal's approach to the award of damages, by suggesting that the respondent would not be fully compensated if required to contribute to the funds of the owners corporation to meet such an award confuses two things. First is the liability of the owners corporation to the Lot owner. The second is the requirement in the SSMA for all Lot owners to contribute in proportion to the unit entitlements in respect of any levies to be made by an owners corporation to meet its financial obligations. In short, the SSMA prescribes power and when funds are to be levied against lot owners and when a Lot owner might be relieved from an obligation to contribute.
4. Consequently, s 232 can only be invoked in connection with any relevant dispute which the Tribunal has authority to decide which falls within the meaning of that section. Further, s 90(2) deals with the very power to make quarantining orders and in the absence of that section conferring power on the Tribunal, s 232 does not assist.

Analysis

1. The question is whether the Tribunal has power to make an order in respect of the proportions in which an owners corporation might levy Lot owners in connection with an award for money made against it in favour of a Lot owner in proceedings in the Tribunal and in respect of any cost orders made in relation to such proceedings.
2. It is variously asserted that the Tribunal has power to make such an order under s 90, s 104, s 232 or other sections of the SSMA. As necessary, we will deal with each of these sections below.
3. The issue raises a matter of statutory construction. The relevant principles can be stated briefly.
4. In Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503, the High Court said at [39] (p519]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (citation omitted). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
5. Where there is conflict or ambiguity, an interpretation is to be given which promotes the purpose of the legislation, provides for a consistent and fair meaning and provides for the harmonious operation of the legislation as a whole. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, the High Court said at [69]-[71] (citations omitted): 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

Costs

1. The appellant has been partially successful in its appeal. On the other hand, having regard to our conclusions, it would appear the respondent was successful in obtaining the alternative relief sought in its original application, namely the registration of a by-law permitting its exclusive use of the area in the SJ Dixon Survey.
2. We will permit the parties to make submissions concerning costs of the proceedings at first instance and in respect of this appeal, including the terms of any quarantining order in respect of costs of each of the parties.

Orders

1. The Appeal Panel makes the following orders: 1. The appeal is allowed in part. 2. Orders 3(a) and (b) made 2 June 2020 are set aside and in lieu thereof the following orders are made: Pursuant to Part 7 Divisions 1 and 2 of the Strata Schemes Management Act 2015, the respondent (The Owners - SP 74698) is to take all necessary steps to convene a general meeting, pass a special resolution and register a common property rights by-law in respect of common property in favour of the applicant (Jacinta Investments Pty Ltd) and the owners from time to time of lot 83 on the following terms: a) Exclusive use and enjoyment is to be granted to the owner of lot 83 in respect of the common property being the ground floor area depicted in the survey of SJ Dixon Surveyors Pty Ltd dated 9 July 2019 found in the Appeal Bundle at AB 1078. b) The owner of lot 83 is responsible for all costs and expenses in relation to the preparation and registration of the by-law by the owners corporation; c) The owner of lot 83 has permission to install a glass awning the cleaning, repair and maintenance for which it was responsible; d In using the common property area, the owner of lot 83 is, at its cost, responsible for: I. keeping all security and fire doors closed on the ground floor; II. cleaning and maintaining the ground floor common property and lobbies; III. not permitting loud noise or any disturbances to residents in the building as follows: i. on Monday, Tuesday, Wednesday, Thursday and Sunday from 8:30 pm onwards; ii. on Friday night from 10:00 pm onwards; and iii. on Saturday nights from 12:00 am onwards. 1. Order 2 made 20 June 2020 is set aside and in lieu thereof the following order is made concerning the order for payment of damages: The respondent (The Owners - SP 74698) is to levy all lot owners, other than the applicant (Jacinta Investments Pty Ltd) in respect of the award for damages payable by the respondent to the applicant pursuant to Order 1 that 1 June 2020, such levy is to be in proportion to the unit entitlements of each lot owner other than the applicant. 1. The parties have liberty to apply to the Tribunal in the proceedings at first instance in connection with any dispute about the implementation of order 2. 2. In respect of costs of the proceedings at first instance and of this appeal and on the question of whether an order of the type in order 3 above should be made in respect of such costs, the following directions apply: 1. within 14 days from the date of this decision any applicant for costs (costs applicant) is to file and serve evidence and submissions in support of that application (costs application). 2. Within 28 days from the date of this decision, the respondent to the costs application is to file and serve evidence any submissions in response. 3. Within 42 days from the date of this decision the costs applicant is to file and serve any submissions in reply. 4. The submissions are to include submissions about whether an order should be made dispensing with a hearing. 1. Save as provided above, the appeal is dismissed. .********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2021