drafted, and signed, immediately prior to the vote on resolution 2.[18] 14. The letter is said by KS & RRR Pty Ltd to require the reversal of resolution 2 at a future Body Corporate meeting particularly if it is unable to either: (i) recover the increased cost of $21,814.61 from its tattoo studio tenants; or (ii) evict the tenants. If so the 'default' position in s 36(3) would be restored, with KS & RRR Pty Ltd liable to pay a "contribution" of $3,250.38 (rounded up) rather than the full increased cost. 15. The Body Corporate said the letter contained no such "promise", and was not an "enticement" to induce KS & RRR Pty Ltd to support resolution 2. Rather the letter was merely a letter of "comfort"[19] or "gentlemen's agreement" about a "very, very hot topic", which did not legally bind the Body Corporate or the members to reverse resolution 2.[20] Its purpose was to give KS & RRR Pty Ltd "some confidence" that resolution 2 was not "necessarily set in stone", and that "there was more road that could be travelled depending on what happened down the track" vis-à-vis KS & RRR Pty Ltd recovering the increased cost from the tenants or evicting them.[21] At that time the question of liability could be discussed at a future meeting where members had "liberty" to decide whether or not to rescind or vary the resolution, provided that KS & RRR Pty Ltd had done everything it could to either recover the increased cost from its tenants, or evict them for breach of the lease.[22] 16. Two related (special) resolutions were said to have been (unanimously) passed at the meeting on 16 March 2023[23] to: (i) allocate up to $15,000.00 to cover KS & RRR Pty Ltd's "reasonable costs" if the tattoo studio lease ended - provided that KS & RRR Pty Ltd "used best endeavours to ensure the Tenant has vacated the tenancy [of unit 3] as soon as practicable" (resolution 1); and (ii) amend the Body Corporate's budget to reflect the allocation of $15,000.00 (in resolution 1) and the increased insurance cost, including by increasing and determining unit contributions for the Body Corporate's "Administration Fund" to "reflect the apportionment terms agreed to in Motion 2 [ie resolution 2]" (resolution 3).[24] 17. The underlying premise of these three resolutions, based on "advice" obtained by the Body Corporate, was that - upon becoming liable in full for the increased insurance cost, and pursuant to the lease of unit 3 - KS & RRR Pty Ltd could recover that cost from its tattoo studio tenants, either as an outgoing under cl 10.1(a) of the lease or pursuant to an obligation or indemnity under cl 18.4 or 18.5; or evict the tenants if the cost was

not paid (ie due to breach of the lease).[25] If the latter, the increased insurance cost would lapse - because the tattoo studio in unit 3 had ceased. This underlying premise of the three resolutions was legally incorrect. 18. The "advice" also suggested eviction because the tattoo studio usage had not been approved under the Planning Act 1999, an omission which the tenants rectified such that that suggestion became moot. 19. For the reasons which follow, the Body Corporate's claim cannot be sustained, and must be dismissed. 20. First, the evidence demonstrates that on 16 March 2023 Mr Mu (on behalf of KS & RRR Pty Ltd) gave only qualified support for resolution 2, namely that it would be reversed on "request" particularly if the increased insurance cost of $21,814.61 could not be recovered as an outgoing, or an obligation or indemnity, from its tattoo studio tenants, or they could not be evicted. This proviso on KS & RRR Pty Ltd's support was wholly unsurprising. The letter of commitment and assurance to KS & RRR Pty Ltd confirms that Mr Mu's support for resolution 2 was qualified. The Body Corporate's failure to record this qualification and include the letter in its minutes of the meeting on 16 March 2023 breaches regulatory requirements, and requires rectification.[26] 21. The contrary position of other unit owners who gave evidence (Mr Harris, Mr Blenkinship and Mr Gollow), supported by Mr Carlsund (who drafted the letter), that the letter had no legal effect and was merely a letter of "comfort" and a "gentlemen's agreement" does not accord with its text, and also evinces a lack of objectivity and a serious misunderstanding of KS & RRR Pty Ltd's position. At least, there was no unanimity in the members' consideration and understanding of resolution 2 at the meeting on 16 March 2023. 22. This factual finding means that resolution 2 was not carried at the meeting (since unanimity was required), and thus is not in force. The contrary record in the Body Corporate's minutes requires rectification. 23. It follows that resolution 3 miscarried and is void due to non-compliance with s 36(3) of the Unit Titles Act 1975 because, in reliance on resolution 2, it purportedly altered the 'default' position in that provision whereby "determine[d]" contributions are apportioned amongst members by reference to the UEV of each unit.[27] That purported alteration can only be valid if resolution 2 was unanimously carried (and is valid) ,which is not the

case. Again, the contrary record in the Body Corporate's minutes requires rectification.[28] 24. Secondly, only six working days' written notice was given to members of the meeting on 16 March 2023, and its proposed resolutions - particularly nos 1, 2 and 3, being related or "interconnected" resolutions which were part of a package.[29] This contravened the legislative mandate that there be 21 working days' notice of a unanimous resolution (ie resolution 2) and 14 working days' notice for other resolutions (ie resolutions 1 and 3).[30] Additionally, there was no notice at all of the letter of commitment and assurance dated 16 March 2023 which qualified resolution 2, and was drafted during the meeting. 25. This substantial contravention of the legislative mandate was not merely "technical"[31] such that the resolutions were "not invalidated".[32] Nor can the mandate be said to have been unanimously waived.[33] The issues raised were legally complex, with the members having markedly different interests. It was incumbent on the Body Corporate to ensure that each member had sufficient time to carefully consider the resolutions (including in light of legal advice), particularly by fully complying with the regulatory time periods. That did not occur. 26. The Body Corporate's omission to do so, and conduct of the meeting, significantly contributed to injustice by limiting the capacity of KS & RRR Pty Ltd to obtain legal advice about the resolutions - particularly the "advice", and incorrect premise (that KS & RRR Pty Ltd could recover the increased insurance cost of $21,814.61 from the tenants, or evict them), on which the resolutions were based. Moreover the Body Corporate provided no opportunity at all to KS & RRR Pty Ltd to obtain legal advice about the letter of commitment and assurance which was drafted, and signed, during the meeting (immediately prior to the vote on resolution 2). 27. Accordingly, in my view, resolutions 1, 2 and 3 are void ab initio due to contravention of the notice requirements in cl 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009.[34] 28. Finally, since resolutions 2 and 3 were never carried and/or are void, the Body Corporate has not yet given "notice" under s 36(5) of the Unit Titles Act 1975 of a determined "contribution" for the "Admin Insurance Premium Contribution" (of $7,573.00 for unit 3) which was specified in the three quarterly invoices issued to KS & RRR Pty Ltd on 17 March 2023, 1 June 2023, and 4 September 2023 (in sum being $22,719.00).

This non-compliance with s 36(5) renders each invoice invalid (at least insofar as the invoices concern that item), and means there is no "recoverable debt" of $22,719.00 which may be recovered by proceedings in the Tribunal under s 6(a) of the Small Claims Act 2016. 29. It follows that the application must be dismissed.[35]

1. On 19 April 2022 the former owner of unit 3 leased it for commercial purposes, the "Permitted Use" being "Body Piercing and Tattoo Studio", with two persons as joint tenants. Hitherto unit 3 was occupied, and presumably leased, as an office by the Cullen Bay Marina Management Corporation.
2. The term of the lease is five years from 2 May 2022 to 1 May 2027 (with no option to renew). The rent is $3,750.00 per month (ie $45,000.00 per year).[36]
3. At the time of grant on 2 May 2022 the approved use for unit 3 under the Planning Act 1999 was for office purposes, which did not include the commercial provision to the public of tattooing or body piercing.[37] There was no application at that time to obtain approval under that statute for this altered use of unit 3.
4. KS & RRR Pty Ltd purchased unit 3 as an investment (in around June/July 2022), at which time the lease was extant. Accordingly KS & RRR Pty Ltd replaced the former owner as the landlord of the lease.[38]
5. On 24 November 2022, prior to being apprised of the increased insurance cost due to the tattoo studio, the Body Corporate held an annual general meeting. It was attended by two members (the Chair, Mr Harris, and Mr Gollow, as well as the strata manager, Mr Carlsund), meaning that there was no quorum.[39] In this circumstance the meeting proceeded with several interim resolutions passed, which were subsequently notified to other members and confirmed pursuant to the process in cl 32 of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009.[40]
6. One such resolution (motion no 3) was to appoint Whittles as the strata manager for a (backdated) three year term from 1 October 2022 to 30 September 2025.[41] The evidence did not disclose the identity of the strata manager (if any) prior to 1 October 2022, particularly in May 2022 when the tattoo studio lease of unit 3 was granted.
7. Motion no 7 proposed that a licensed valuer be engaged to provide an Insurance Valuation Report for the strata complex buildings, which would subsequently be adopted on receipt. The meeting minutes note that the last such report was obtained in 2013, at which time the replacement cost of the buildings was $4,575,000.00. This motion, and proposal, was rejected (meaning that there was no interim resolution, and thus no subsequent confirmation of that resolution).[42]
8. However a related motion, no 8, entitled "Insurance" was passed. It proposed that the "current insurance coverage be reviewed and added to and/or adjusted" by reference to quotes arranged by Whittles from an established broker, insurer and underwriting agency. The meeting minutes note that the "Body Corporate is currently negotiating the insurance renewal".[43]
9. Motion no 9 proposed that the "attached administrative fund budget" for the financial year ending on 30 September 2023 be "approved and adopted". The total unit contributions of $67,610.00 were "the same as the previous budget". It was expected that the cost of renewed insurance would be $49,000.00; that is, the Body Corporate and its members were not then aware that the leased tattoo studio in unit 3 would cause insurance difficulties (ie the insurer's withdrawal of future cover, and an increased insurance cost from an alternative provider).[44] This was easily the largest expense, being about 58% of the Body Corporate's budgeted annual expenditure of $84,262.00.
10. The motion recorded that the total contributions of $67,610.00 would be apportioned amongst members by reference to the UEV of each unit (ie the 'default' position in s 36(3) of the Unit Titles Act 1975), and paid by quarterly instalments in advance from 1 October 2022. The UEV for unit 3 was identified in the budget as equating to 0.149 (ie 14.9% of the total contributions), with a quarterly contribution of $2,518.00 (ie an annual contribution of $10,072.00).[45] This motion was passed.
11. Motion no 11 authorised Whittles, from time to time, to recover overdue contributions from members, including by "instructing a debt recovery company to initiate legal proceedings".[46] This motion was passed.
12. As noted in relation to motion no 8 (and possibly as part of a formal review), Whittles arranged for the renewal of insurance. By email dated 20 December 2022 to Mr Carlsund, MGA Insurance Group confirmed that the Body Corporate's then insurer, CHU, had refused further cover given the tattoo studio in unit 3.
13. Although the Body Corporate and its then members (including KS & RRR Pty Ltd) had not foreseen that insurance may be refused or the premium significantly increased due to the tattoo studio lease, this is a known issue for strata complexes particularly where there is mixed use (eg commercial and residential lots, as is the case here). Other commercial activities which may increase the cost of strata insurance reportedly include tobacconists (noting the current illegal trade in tobacco) and massage parlours.[47] In

that respect the strata insurance cost is "influenced by the highest risk tenant" (eg a mechanic in an industrial duplex, as compared to an adjoining lot used as an office).[48] 14. In New South Wales strata legislation includes a process whereby a lot owner may consent to meet the cost of an increased strata premium which derives from the use of that lot, with review by the NSW Civil and Administrative Tribunal where a lot owner "unreasonably" refuses consent.[49] In Victoria, pursuant to a 2021 amendment, an owners corporation for a strata complex may pass on an excess insurance premium to a lot owner if it "solely relates to a lot owner's lot".[50] Such a legislative process does not exist in the Northern Territory under the Unit Titles Act 1975.[51] 15. CHU also advised Mr Carlsund on 20 December 2022 that, if there was no tattoo studio, Body Corporate insurance for the following year would be at an increased "indicative" cost of $53,570.00.[52] Marina Operator Liability Insurance of $3,320.00 was added, giving a final estimated cost of $56,890.00 if there was no tattoo studio[53] - as compared to the budgeted sum of $49,000.00 which was tabled at the Body Corporate meeting on 24 November 2022.[54] Mr Carlsund forwarded this email and advice to Mr Mu (of unit 3) and the Chair, Mr Harris, later that day. 16. Two days later, on 22 December 2022, the Body Corporate held an extraordinary general meeting to discuss insurance (particularly CHU's refusal to provide further cover), which was attended by all seven owners of the 26 units.[55] Pursuant to s 80(3) of the Unit Titles Act 1975 and by "unanimous resolution", the members resolved that the Body Corporate would not insure the buildings and other improvements for their replacement value against a broad range of risks identified in s 80(1) for a period of

"up to 90 days",[56] during which the Body Corporate would source an alternative

insurer.[57] 17. The default position under s 80(1) is that a Body Corporate must insure against those risks. The Body Corporate's resolution meant that it was not in breach of that provision, but also exposed it to significant risk (during Darwin's wet season) for an uninsured period of "up to 90 days". 18. The Body Corporate secured an alternative insurer (One Underwriting Pty Ltd) well within that 90 day period, at a total annual cost of $78,704.61[58] - as compared to an estimated $56,890.00 if there was no tattoo studio.[59] This increased cost of $21,814.61 was not foreseen by the Body Corporate when the lease was granted in May 2022, or by KS & RRR Pty Ltd when it purchased unit 3 in around June/July 2022 (after the grant of the lease).[60] 19. By email to Mr Mu dated 6 February 2023 (copied to Mr Blenkinship, Mr Gollow and Mr Carlsund), Mr Harris provided a comparative breakdown of the cost of insurance including that there was an estimated increased cost of $21,814.61 due to the tattoo studio in unit 3. Mr Harris advised that One Underwriting Pty Ltd was the only firm to offer insurance with the tattoo studio in situ, and that its offer expired on 8 February 2023 (after which the premium would substantially increase).[61] 20. The Body Corporate accepted the offer and secured insurance from One Underwriting Pty Ltd for the 12 month period from 8 February 2023. 21. On 8 March 2023 Mr Carlsund gave written notice of a general meeting on 16 March 2023, principally to increase and apportion members' contributions to cover the increased insurance cost. The notice identified three related motions about that topic, as follows (referred to herein as resolution 1, resolution 2 and resolution 3):[62]

Motion 1. Insurance - Business Interruption. (Special Resolution).

A motion is passed by a special resolution if at least two thirds of the votes cast are in favour of the motion and the unit entitlements of the lots for the votes against the motion do not exceed 25% of the total unit entitlements.

That the Body Corporate agree to expenditure of up to $15,000 (in whole or in part)

of reasonable costs incurred by the Owner of Unit 3, if the Tenant in Unit 3 vacates the tenancy due to changes made to the Budget and the Owner of Unit 3 has used best endeavours to ensure the Tenant has vacated the tenancy as soon as practicable.

Motion 2. Contributions - Insurance Fund. (Unanimous Resolution)

A motion is passed by a unanimous resolution if the number of votes in favour of the motion is equal to the total number of lots.

That the Body Corporate agree to apportion the costs of the insurance premium in a formula other than by UEV. That formula being: Quoted cost of an insurance premium offered without the current Unit 3 tenant in place to be apportioned by UEV and the difference between the insurance premium paid and an insurance premium offered to be apportioned to Unit 3.

Motion 3. Amend the Budget. (Special Resolution)

A motion is passed by a special resolution if at least two thirds of the votes cast are in favour of the motion and the unit entitlements of the lots for the votes against the motion do not exceed 25% of the total unit entitlements.

That, in accordance with the provisions of the Unit Titles Act, the Body Corporate agree to amend the budget to increase the Administrative Fund contributions to meet its likely expenditure.

Contributions under this budget are increased from the previous budget with total contributions of $104,327.41 for the financial year ending 30/09/23. The increase is effective from 1/4/2023.

The annual Administration Fund contribution payable by each Unit holder is to be paid by quarterly installments, as from 01/04/2023, each always in advance of the due date.

1. These "interconnected" resolutions recognise that KS & RRR Pty Ltd may incur financial liability if the tenants consequently vacated the premises (eg lost rent).[63] Accordingly, pursuant to resolution 1, the Body Corporate gave advance authorisation to contributing to such reasonable costs as may be incurred - capped at $15,000.00.
2. The meeting notice of 8 March 2023 was accompanied by a revised budget (as per resolution 3), which was identical to the budget considered at the annual general meeting on 22 November 2022 excepting changes relating to insurance and unit contributions (as per resolution 1 and 2).[64] Both budgets included a standard line item entitled "Contributions" for the Body Corporate's "Income", which was respectively recorded as $67,610.00 on 22 November 2022 and $68,386.80 on 8 March 2023. It was met by all members, as apportioned by reference to a unit's UEV. The latter revised budget included an additional line item for "Income" entitled "Contributions -

Insurance Fund" which totalled $50,259.61. There was also a new section entitled "Calculation of Levies" which recorded what was said to be a "Once-off" shortfall contribution for the "increased insurance premium" in the sum of $21,815.00 which was allocated solely to unit 3.[65] 3. This nomenclature for the line items accurately identifies their character as "contributions" - being a term used in the Unit Titles Act 1975, whereby a Body Corporate recovers the cost of various expenses from its members. One of those expenses is the insurance premium for which a Body Corporate is liable to an insurer under a contract. The members are not party to that contract, and do not themselves incur an insurance premium. Rather, pursuant to the legislative scheme, the members are required to contribute to that and other expenses incurred by the Body Corporate. 4. This conceptual distinction between an "insurance premium" incurred by the Body Corporate, and a "contribution" required of a member to meet that and other expenses incurred by the Body Corporate (combined with "contributions" from other members), informs the construction and effect of cl 18.4 and 18.5 of the lease (as discussed below). 5. The revised budget incorrectly identified anticipated income (particularly from unit contributions) as $104,327.41, being the (erroneous) figure also stated in resolution 3 as the "total contributions" for the financial year ending on 30 September 2023.[66] 6. After the hearing Whittles explained that, inadvertently and due to "administrative oversight", this and several related figures in the revised budget (and in resolution 3) were "presented in error due to the legacy of previously created budget variants" in other documentation which explored different insurance scenarios for earlier consideration by the Body Corporate's governing committee.[67] 7. The correct figure for anticipated income was $76,486.10, which was specified in a budget forwarded to unit owners by Mr Carlsund on 21 March 2023 (together with the minutes of the meeting on 16 March 2023) - but with no written advice that this and related corrections had been made,[68] or that there would be a formal correction of the documentation by resolution at a subsequent general meeting.[69] 8. The resolutions reflected "advice" that the Body Corporate had no power itself to

|take any action against the tattoo studio tenants, either to recover the increased insurance cost or evict them from unit 3.[70] This aspect of the "advice" was accurate. Only the landlord (ie KS & RRR Pty Ltd) can enforce the unit 3 lease, either by recovering incurred costs (assuming that the lease so provides) or evicting the tenants if there is a breach. However due to the 'default' position in s 36(3) of the Unit Titles Act 1975, KS & RRR Pty Ltd was not (fully) liable for the increased insurance cost (ie $21,814.61) as part of its levied "contribution", and thus could not recover that amount from the tenants.[71] 9. Accordingly the purpose of the resolutions (particularly resolution 2) was to displace the 'default' position in s 36(3) of the Unit Titles Act 1975 whereby the increased insurance cost (ie $21,814.61) is apportioned to each unit by reference to its UEV. Instead unit 3 (ie KS & RRR Pty Ltd) would become fully liable for the increased cost of $21,814.61 as part of its levied "contribution", with a view to it being recovered from the tenants. The other 25 units in the complex would not incur any of that increased cost in their "contributions", and thus would be in the same position as if the tattoo studio lease had never been granted. 10. In that respect the Body Corporate's "advice" (as generally disclosed in evidence or submissions) was that, upon being levied in full for the increased insurance cost (via resolutions 2 and 3), KS & RRR Pty Ltd could either (pursuant to the lease of unit 3): (i) recover the increased cost of $21,814.61 from its tattoo studio tenants, either as an outgoing under cl 10.1(a) or pursuant to an obligation or indemnity under cl 18.4 or 18.5; or (ii) evict the tenants if the cost was not paid.[72] Another basis for potential eviction identified by the Body Corporate was that the tattoo studio usage had not been approved under the Planning Act 1999, an omission which the joint tenants promptly rectified by around July 2023 such that this prospect became moot. 11. That KS & RRR Pty Ltd would be able to recover the increased cost of $21,814.61 from its tenants, or evict them, was an underlying premise of the three "interconnected" resolutions. However, after the three resolutions were (purportedly) passed at the meeting on 16 March 2023, KS & RRR Pty Ltd ascertained that this premise was incorrect. 12. In that respect at the hearing Mr Mu's "understanding" was that legally he could pass on a "portion" of the increased insurance cost "to the tenants, but not the full amount" (ie $21,814.61).[73] 13. This position accords with the view, which I accept, that pursuant to cl 10.1(a) of the lease KS & RRR Pty Ltd can recover "Outgoings" from the tenants on the basis that

this defined term includes a "variation" to the levied "contribution" for unit 3 under s 36(3) of the Unit Titles Act 1975, since this default provision was operative and - considered objectively - was in the contemplation of the parties to the lease as per its text when it was executed on 19 April 2022. 14. Specifically cl 10.1(a) of the lease provides that KS & RRR Pty Ltd must be reimbursed by its tenants for (inter alia) "Body Corporate Levies: $1,112.67/month (subject to variation)" (as per the definition of "Outgoings" in cl 1.1 and 10.1(a)), which includes a "contribution" to meet the cost of an increased insurance premium where that "contribution" necessarily derives from the grant of the unit 3 lease. This construction means that, in Mr Mu's words at the hearing, KS & RRR Pty Ltd can recover a "portion" of the increased insurance cost of $21,814.61 - which the Tribunal calculates to be $3,250.38.[74] That "portion" is plainly contemplated to be part of the "Outgoings" which the tenants must reimburse under cl 10.1(a), since it is a "variation" which must occur under the default provision for "contributions" in s 36(3). 15. However in my view a "variation" such that the levied "contribution" for unit 3 includes the full increased insurance cost (ie $21,814.61) is not a recoverable outgoing under cl 10.1(a), unless there was prior disclosure to the tenants that KS & RRR Pty Ltd would subsequently join in a unanimous resolution to that effect under s 36(4)(b) of the Unit Titles Act 1975. Section 36(4)(b) is only engaged if KS & RRR Pty Ltd positively agrees, after the execution of the lease, to be levied in full for that cost (ie as part of a unanimous resolution by the members) - being an action which directly affects the tenants' interests. Absent such disclosure, it cannot objectively be said that the parties contemplated, or agreed, that KS & RRR Pty Ltd would take that action after the lease was executed. Specifically, in this circumstance the full increased cost would not be a "variation" to the outgoing which the tenants must reimburse under cl 10.1(a) (properly construed). 16. This construction - that the full increased insurance cost (ie $21,814.61) is not a recoverable outgoing under cl 10.1(a)) - is informed by, and accords with the letter and spirit of, the Business Tenancies (Fair Dealings) Act 2003. Its legislative object is to ensure that a party is not surprised, after execution, by an unexpected cost or event. To that end s 19(1) requires that there be disclosure of prescribed information prior to the execution of a commercial lease, which must include the "estimated outgoings for the current outgoings year" - including "Insurance" - on the basis that actual outgoings are "calculated and reconciled" at the end of that year.[75] Clause 10.1(a) must be construed in that legislative context. 17. The former owner's disclosure under that statute was not in evidence, however it was not suggested that the tenants had prior notice that the unit 3 landlord would, after execution, voluntarily accept an increased "contribution" under s 36(4)(b) of the Unit Titles Act 1975 with a view to recovering that increase from the tenants - or evicting them. The evidence, including that the Body Corporate was first apprised of insurance difficulties on or about 20 December 2022 (when CHU refused further cover), and that the increased cost was "unbeknownst" to the tenants,[76] accords with the conclusion

that there was no such disclosure. I proceed on that basis.[77] 18. The Body Corporate separately said that, "on any reading" of cl 18.4 of the lease, the increased cost of $21,814.61 (if wholly apportioned to KS & RRR Pty Ltd under s 36(4)(b)), "absolutely can be" recovered by KS & RRR Pty Ltd from the tenants.[78] KS & RRR Pty Ltd submitted, by reference to the opening words of cl 18.4, that the Body Corporate's position on this point was incorrect because (properly construed) the tenants had not "do[ne] anything" which may affect insurance or increase a premium; the tenants' only action was to continue to operate the tattoo studio, being the "Permitted Use" which is expressly authorised by the lease.[79] 19. I do not accept the Body Corporate's construction of cl 18.4. As explained above, conceptually there is a clear distinction between an "insurance premium" incurred by the Body Corporate under its own insurance policy, and a "contribution" required of a member pursuant to ss 36(3) or (4)(b) - noting that the latter (ie a "contribution") covers a range of expenses, and only partially concerns the Body Corporate's insurance expense. The Body Corporate is contractually liable to the insurer for the former; a member by statute is liable to the Body Corporate for the latter as a "debt" under s 36(6). Clause 18.4 expressly concerns an "increase" in an "insurance premium". It does not in its terms address a member's liability from time to time to pay a levied "contribution".[80] 20. The Body Corporate further submitted that the question of whether KS & RRR Pty Ltd can legally recover the increased cost of $21,814.61 from its tenants "is all completely irrelevant to our case", which is simply "that there was a unanimous resolution to reallocate the [increased] insurance, which Mr Mu agreed to". According to the Body Corporate, this bare fact (as recorded in the minutes and as attested by its witnesses) meant that KS & RRR Pty Ltd must be taken to have agreed that it would bear that increased cost - regardless of whether that cost could be recovered from its tenants, and without a broader assessment of the circumstances including the Body Corporate's "advice" which informed the drafting of the three resolutions and the members' understanding of their effect.[81] 21. I do not accept this submission. The question of whether each of the Body Corporate members unanimously resolved to apportion the increased cost of $21,814.61 to KS & RRR Pty Ltd (with it having no legal power to reverse such an apportionment) is a question of fact. It can only be determined by considering the full circumstances which pertain to the Body Corporate meeting which occurred on 16 March 2023, including the understanding of each member (and attendee) as to what was being voted upon. This requires an appreciation of the underlying premise of the Body Corporate's "advice" and the three resolutions which informed the members' understanding, namely that if passed KS & RRR Pty Ltd would be able to recover the increased cost of $21,814.61 from its tenants, or evict them. The textual record of the three resolutions in the minutes is relevant, but not necessarily conclusive, to determining that factual question. 22. It follows from the above, in my view, that the three "interconnected" resolutions were based on an incorrect premise, namely that - if resolution 2 was unanimously supported - KS & RRR Pty Ltd would be able to recover the increased cost of $21,814.61 from its tenants, or evict them. That mistaken and misconceived premise derived from the Body Corporate's "advice", on which the members relied when supporting the resolutions (in the case of KS & RRR Pty Ltd, being qualified support for resolution 2).[82] 23. At least the absolute confidence which underpinned the Body Corporate's "advice" to its members was seriously misplaced; it certainly cannot be said to be clearcut, legally, that KS & RRR Pty Ltd could fully recover the increased cost, or evict its tenants. In turn this misplaced confidence apparently informed an unjustified level of certainty and conviction amongst the Body Corporate's witnesses that the status quo for insurance which pertained prior to the tattoo studio lease could readily be restored. This was reflected in their evidence, including as set out below. 24. So appreciated, and from a practical perspective, it was always likely that the unit 3 tenants would resist paying the increased insurance cost, and any attempt to evict - as in fact occurred. The increased cost of $21,814.61 equates to 48.48% of the annual rent of $45,000.00; no commercial tenant could realistically be expected to readily accept such an impost unless it was the subject of prior disclosure and/or clearly stated in the lease or in legislation. 25. Nor could it realistically be expected that KS & RRR Pty Ltd would simply agree, without qualification, that 48.48% of the gross rental profit from its investment property (unit 3) would be forgone to meet the Body Corporate's increased insurance cost - especially since KS & RRR Pty Ltd was not apprised of that possible cost when it purchased unit 3. There was, at least, no legal certainty that that lost rental profit could readily be recovered from the unit 3 tenants if they objected. Moreover the cost of litigation, if KS & RRR Pty Ltd were to try and enforce payment or evict, would quickly exceed the Body Corporate's capped contribution of $15,000.00 (which in terms does not concern the cost of litigation for enforcement of the payment) and the increased (annual) insurance cost of $21,814.61. 26. Consequently, as I conclude below, it is wholly unsurprising that on 16 March 2023 KS & RRR Pty Ltd gave only qualified support for resolution 2, namely that the obligation to meet the increased insurance cost of $21,814.61 would be reversed on "request" by KS & RRR Pty Ltd - particularly if that cost could not be recovered as an outgoing, or an obligation or indemnity, from its tattoo studio tenants, or they could not be evicted. 27. The notice dated 8 March 2023 gave members only six working days' written notice of the general meeting on 16 March 2023, and its proposed resolutions - particularly nos 1, 2 and 3. This contravened the legislative mandate that there be 21 working days' notice of a unanimous resolution (ie resolution 2) and 14 working days' notice for other resolutions (ie resolutions 1 and 3).[83] Additionally, there was no notice at all of the letter of commitment and assurance dated 16 March 2023 which Mr Mu and KS & RRR Pty Ltd took as qualifying resolution 2 (a position which accorded with its text). The letter was drafted during the meeting, and signed or endorsed by all attendees immediately prior to that resolution being put (as discussed below). 28. This omission to comply with the regulatory time periods occurred in circumstances where the resolutions concerned issues which were legally complex, with the Body Corporate members having markedly different interests. The object of the legislative periods is to ensure that there is sufficient time for each member to consider resolutions, including by obtaining legal advice. Contrary to the understanding expressed by the Body Corporate's witnesses at the hearing, the interests of KS & RRR Pty Ltd were not "very closely aligned" with other members such that all could be taken to be working "collectively together" to achieve the same outcome.[84] The 'default' operation of s 36(3) of the Unit Titles Act 1975 establishes otherwise. 29. In my view, in the circumstances, the non-compliance with regulatory time periods was a substantial contravention of the legislative mandate (ie not merely "technical non-compliance"), such that resolutions 1, 2 and 3 are void ab initio due to contravention of the notice requirements in cl 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009 (as discussed below). There is no evidence that the members considered this question, or agreed to waive the notice requirement.[85] 30. On Wednesday 15 March 2023 Mr Carlsund forwarded a "General Meeting Reminder" to all unit owners about the meeting scheduled for the following day, which encouraged any member who was unable to attend to participate by completing the "attached proxy

form with the voting summary on the reverse".[86] 31. The reminder letter enclosed the meeting notice and supporting documentation previously sent to members on 8 March 2023, including the proposed resolutions and the proposed budget (and a proxy voting form).[87] These documents were identical to the proposed resolutions and proposed budget as previously provided on 8 March 2023, with the anticipated income (particularly from contributions) incorrectly identified as $104,327.41. 32. Later on Wednesday 15 March 2023 Mr and Mrs Compain (who own one unit) forwarded Mr Carlsund a completed proxy form which appointed a representative of Whittles as their proxy (a role fulfilled by Mr Carlsund), together with a completed "Proxy Voting Summary" form which stated their support for all three motions (ie resolutions 1 to 3).[88] 33. The general meeting commenced at 1 pm on Thursday 16 March 2023, and finished about an hour later at 2.12 pm. Five unit owners (or their representatives) physically attended the meeting: Mr Harris, Mr Blenkinship, Mr Gollow, Mr Seth Chin (the then owner of one unit), and Mr Mu (who arrived about 10 minutes late).[89] The owner of another unit, Lay & Sons Organisation Pty Ltd represented by Mr Chris Lay, attended the meeting by telephone. Mr Carlsund attended as the proxy for Mr and Mrs Compain, meaning that all unit owners could vote regarding the resolutions. Mr Carlsund also attended in his capacity as the strata manager.[90] 34. The meeting was formally chaired by Mr Harris, but with Mr Carlsund's assistance; in Mr Harris's words, "Carl ran the meeting".[91] At the hearing Mr Carlsund said, and I accept, that the resolutions were discussed in their numeric order, and voted upon when the discussion for each resolution was completed (whilst accepting that there was significant overlap in the discussion of the three resolutions due to them being "interconnected") - at which time Mr Carlsund formally read out the resolution, and called for and recorded the votes, with each member asked "individually" whether the resolution was supported.[92] Mr Harris and Mr Blenkinship agreed that this occurred, although Mr Mu recalled that the "meeting was mostly a conversation between me, Victor [Harris] and Carl [Carlsund] about the insurance premiums", with "no proper

voting on resolutions".[93] Nothing turns on this difference in recollection. 35. As is not uncommon for a small entity with only seven members (principally due to 19 of the 26 units then having the same owner), there was a level of informality in the conduct of the meeting which may have contributed to some misunderstanding or confusion by other attendees regarding KS & RRR Pty Ltd's position as expressed by Mr Mu. 36. There was also some minimalism, and error (including regulatory non-compliance), in the recording of the minutes. There was no mover or seconder for any of the motions,[94] and although the minutes record that the budget (relating to resolution 3) was amended during the meeting to provide for KS & RRR Pty Ltd to pay the increased annual cost of $21,840.61 in "four equal quarterly instalments", there was no formal amending motion to facilitate that outcome.[95] The budget was (purportedly) further amended after the meeting by Mr Carlsund and the Committee, with that additional change included in the minutes which were distributed to members on 21 March 2023 - but without any written explanation or notice that that had occurred. 37. However the principal error in the minutes was that there was no reference at all to a letter of commitment and assurance to KS & RRR Pty Ltd dated 16 March 2023 which was drafted and signed by Mr Carlsund during the meeting, and countersigned or endorsed by all "members present".[96] This occurred immediately prior to the vote on resolution 2, after Mr Mu explicitly stated that he was not "paying for the full amount" of the increased cost as per that resolution (see below). The text of the letter is reproduced below. It was plainly drafted in response to Mr Mu's expressed position. 38. This serious error occurred because the Body Corporate (and its witnesses) incorrectly believed that the letter (which Whittles retained) was of "limited relevance", and was merely a letter of "comfort". Hence a copy of the letter, or any reference to it, was not included in the minutes which Mr Carlsund forwarded to members on 21 March

2023. This was a breach of regulatory requirements, which requires rectification.[97] 39. The Body Corporate's position (and that of its witnesses) about the relevance of the letter was incorrectly maintained up until, and at, the hearing. The letter was first produced to the Tribunal by KS & RRR Pty Ltd on the first day of the hearing, with the Body Corporate's objection to its receipt overruled. 40. In that respect the Body Corporate's position does not address or accord with the objective criterion in s 55(1) of the Evidence (National Uniform Legislation) Act 2011, which determines whether evidence is "relevant". 41. By reference to that statutory criterion the letter is plainly "relevant" since, if adduced, it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" - namely whether KS & RRR Pty Ltd endorsed the three resolutions in the form stated in the Body Corporate's minutes, as distinct from giving only qualified support (or no support) particularly for resolution 2. 42. Consequently, far from being of "limited relevance", the letter is integral to appreciating what actually occurred at the meeting, particularly the position expressed by Mr Mu on behalf of KS & RRR Pty Ltd about the three resolutions. This factual question requires consideration of all the circumstances, not merely whether Mr Mu formally voted in favour of each resolution (particularly resolution 2) - as the Body Corporate asserts, and KS & RRR Pty Ltd denies. 43. Moreover, quite apart from the evidence that KS & RRR Pty Ltd gave only qualified support to the resolutions (set out below), the letter in its terms gives a "Commitment" and "assurance" to KS & RRR Pty Ltd about future liability for the "cost of the insurance premium" - which concerns the same subject matter as the resolutions (particularly nos 2 and 3). The use of these (and associated) words, without more, necessarily means that the letter is "relevant" as per s 55(1). 44. At the hearing Mr Mu explained that, prior to the meeting, he relied on his daughter to "briefly" explain the proposed resolutions since he does not read English well.[98] This process imparted sufficient understanding, together with his discussions with other members (particularly Mr Harris) and Mr Carlsund, for Mr Mu to appreciate that - as drafted - resolution 2 displaced the 'default' position in s 36(3) of the Unit Titles Act 1975 whereby the increased insurance cost (ie $21,814.61) is apportioned to each unit by reference to its UEV. Instead unit 3 (ie KS & RRR Pty Ltd) would be fully liable for the increased cost of $21,814.61, and this would be the case regardless of whether that sum was recovered from the tenants (or they were evicted). 45. Mr Mu said that, accordingly, he expressly told the meeting to the effect that whilst willing to assist the other members about the increased insurance cost, KS & RRR Pty Ltd gave only qualified support for resolution 2. The qualification was that resolution 2 would be reversed on "request", particularly if the increased insurance cost of $21,814.61 could not be recovered under the lease by KS & RRR Pty Ltd as an outgoing, or an

obligation or indemnity, from its tattoo studio tenants, or they could not be evicted. The qualification was required because Mr Mu (ie KS & RRR Pty Ltd) was not "paying for the full amount" of the increased cost. 46. In that respect, at the hearing Mr Mu explained:[99]

I said to the committee [ie the general meeting], I don't agree to vote yes to the full amount that they're going to pass on to me, and unless - I will try to help to pass on to the tenants - if the tenants refuse we'll - we'll go - we will hold another meeting. I'll support that.

In the middle of the meeting they draft a letter, asked everyone to sign, and I accepted and I will sign that letter unless we hold another meeting if the tenants refuse to pay for insurance, because I told them I'm not going to pay for it. I'm not paying for full amount.

I did not vote yes [to resolution 2]. ... I vote "No". And then Carl [Carlsund] draft a letter, because I think they said that we had to finalise about the insurance side of it before we can close the - close the meeting.

I didn't really understand it [ie the letter of commitment and assurance], and then Victor [Harris] explained to me. And then I said I will try to pass the full amount of increase to the tenants, but if the tenants refuse we will hold another meeting because I'm not paying for it.

I did not vote yes [to resolution 2]. I would not vote against myself. ... When I said "No", that's when the letter was drafted [ie the letter of commitment and assurance dated 16 March 2023].

1. Mr Carlsund said that he drafted the letter of commitment and assurance after the vote on resolution 1, but prior to the vote on resolution 2. Mr Carlsund said that he did so in response to discussion between the members, but did not recall who requested that the letter be drafted (or the precise detail of the discussion).[100] Mr Carlsund left the meeting for "between five and 10 minutes" to draft the letter, with another staff member then placing it on Whittles letterhead.[101] On returning to the meeting Mr Carlsund read out the letter, and it was passed around for all to read and sign.[102]
2. The letter was addressed to "The Owner - Unit 3" (ie KS & RRR Pty Ltd), and dated 16 March 2023. It stated (bold in original):

As the Body Corporate managers duly appointed we advise that the members present at the General Meeting held on Thursday 16th March 2023 agreed to provide the Owner of Unit 3 with the following assurance.

That the Body Corporate will meet for the purpose of amending the budget to reallocate the difference in the cost of the insurance premium to the Body Corporate should the owner of Unit 3 request the meeting.

[Handwritten signatures of members physically present affixed]

1. Mr Carlsund's handwritten signature was affixed in the space above his name, and the letter was countersigned by members in handwriting underneath by Mr Harris, Mr Blenkinship, Mr Chin, Mr Gollow and Mr Mu (who were physically present). Mr Gollow recalled that the letter was read out to Mr Lay (who attended the meeting by telephone), in which respect the letter records that it was supported by the "members present" which included Mr Lay.[103]
2. The letter was not legally drafted, and there was no opportunity for any member to obtain legal advice about it - but its meaning is plain enough. Considered objectively and on a fair reading the letter is expressed to qualify resolution 2, since it gives a "Commitment" and "assurance" to KS & RRR Pty Ltd about the subject matter of that resolution - which hitherto Mr Mu had explicitly rejected.
3. A "Commitment" is a "promise or firm decision to do something", and an "assurance" is a "promise"[104] - particularly "a statement or promise intended to give someone confidence".[105] The commitment and assurance was that, if requested, the Body Corporate would amend "the budget to reallocate the difference in the cost of the insurance premium" - thus qualifying resolution 2, which otherwise could not be revoked at KS & RRR Pty Ltd's instigation.
4. Specifically, this was a commitment and assurance that the increased cost of $21,814.61 which was apportioned to unit 3 via resolution 2 so that KS & RRR Pty Ltd could seek to recover that sum from its tenants as an outgoing or indemnity, would be reallocated and reversed if requested - particularly if the tenants refused to pay. In that respect it is plain from Mr Mu's statements at the meeting on 16 March 2023 (as extracted above) that the letter was drafted in direct response to his position that KS & RRR Pty Ltd was not prepared to fully pay the increased cost of $21,814.61 - and thus would not support resolution 2 if it irrevocably had that effect.
5. However the resolution of this proceeding is not determined by the objective meaning of the letter of commitment and assurance dated 16 March 2023, or the alternative meaning attributed to it by the Body Corporate and its witnesses. It is sufficient to establish that, insofar as Mr Mu (on behalf of KS & RRR Pty Ltd) supported resolution 2 (and the amended budget under resolution 3), he did so in the belief that it was qualified by the letter of commitment and assurance as outlined in the preceding paragraph.
6. I conclude below, as a finding of fact, that that occurred. That factual finding is determinative of this proceeding in favour of KS & RRR Pty Ltd. It means that there was no unanimity in the members' consideration and understanding of resolution 2 at the meeting on 16 March 2023. Accordingly that resolution was not carried and is not in force, since unanimity was required.
7. Mr Mu did not recall whether resolution 2 was formally put after the letter was drafted and signed by Mr Carlsund and countersigned or endorsed by all members present.[106] However all other witnesses recalled that resolution 2 was put after the letter was drafted and signed, and I accept that that occurred. That is, whilst Mr Mu recalled saying "No" to resolution 2, on his evidence (extracted above at [96]) this was prior to that resolution being formally put after the letter was drafted and signed.
8. Subsequently, when resolution 2 was formally put, and on the evidence as a whole, I accept that Mr Mu supported it (on behalf of KS & RRR Pty Ltd). This was the evidence of all other witnesses. However, contrary to the belief of those witnesses (see below), I find that Mr Mu gave that support in the understanding that the resolution was qualified by the letter of commitment and assurance on the basis that it had the legal effect outlined above.
9. That such qualified support was given is wholly unsurprising. Legally, KS & RRR Pty Ltd had everything to lose, and nothing to gain, from supporting resolution 2 (unless with qualification). Mr Mu well knew that was the case, and thus expressed concerns at the meeting which resulted in the drafting of the letter of commitment and assurance - which was then signed immediately before the formal vote on resolution 2.
10. Whilst, formally, resolution 2 ought to have been amended to expressly incorporate the qualification in the letter and adjourned for consideration at a later meeting (given that it "alter[ed] the nature" of the original resolution and including so that legal advice could be obtained),[107] this does not mean that Mr Mu believed (contrary to his evidence and the circumstances) that it was not qualified by the letter, or that KS & RRR Pty Ltd now gave unqualified support to that resolution - despite having rejected its original form only minutes earlier. As discussed above the meeting was conducted with a level of informality; there was no mover or seconder for any of the motions,[108] the budget (relating to resolution 3) was amended during the meeting without any formal

amending motion to facilitate that outcome, and the budget was (purportedly) amended again after the meeting and circulated to members on 21 March 2023 without any written explanation or notice that that had occurred. 11. It is hardly surprising, including given this informality, that Mr Mu believed that resolution 2 was qualified by the letter - noting, also, that he is not legally qualified or versed in meeting procedure. In that respect there is no evidence, and it was not suggested by the Body Corporate or any of its witnesses, that Mr Mu was told of their position that - in Mr Harris's words - the letter "has really little substance in my view",[109] and was merely a letter of "comfort" with no legal effect. Contrary to Mr Harris's understanding it cannot be concluded, in the circumstances of this matter, that "Mr Mu in his casting of yes to the motion [ie resolution 2] was fully aware" that the increased cost of $21,814.61 would be irrevocably allocated to KS & RRR Pty Ltd.[110] The evidence demonstrates otherwise. 12. The same observation applies to the evidence of other Body Corporate witnesses. 13. Mr Carlsund, who drafted the letter, agreed in cross examination that from his perspective it was merely a letter of "comfort" which recorded that in future KS & RRR Pty Ltd could "ask" the Body Corporate to reallocate the increased cost to all members by reference to UEV - but was not a "promise" to do so. Mr Carlsund said in relation to the letter and resolution 2:[111]

I think it needed to be made clear, the group wanted to make clear to the owner of unit 3 that there was more road that could be travelled depending on what happened down the track, so that the Body Corporate could meet again to discuss anything that may potentially happen. The idea was, that previously we've heard the word "enticement" used, I don't consider it an "enticement" at all. I would have thought it would be more about giving the owner of unit 3 some confidence that the decision that's just about to be made by the Body Corporate isn't necessarily set in stone, that members can always come back to the Body Corporate and, to open up, call a meeting and open up discussion, and have a vote on pretty much any matter.

It was [drafted] at the request of the Body Corporate though as I've said I can't recall who, to provide the Body Corporate with something to be able to give to unit 3 to what I thought at the time to say we can come back together and discuss any outcome that is generated from this meeting. That - that this document I provide to the Body Corporate so that they could provide the unit, the owners of unit 3, with the assurance, with the comfort, with the knowledge that no matter what, or depending, or whatever the outcome of the meeting for him [ie Mr Mu] in real terms, the Body Corporate could meet again to discuss it.

1. Mr Carlsund's appreciation of the meaning of the letter does not accord with his use of the words "Commitment" and "assurance" which, as explained above, respectively mean a "promise or firm decision to do something", and a "promise"[112] - particularly "a statement or promise intended to give someone confidence".[113] As drafted the letter promised that, if requested, the Body Corporate would in future meet to amend the budget and "reallocate" the increased insurance cost of $21,814.61 to "the Body Corporate". That is, resolution 2 would be revoked, with the increased cost allocated to all members by reference to UEV.
2. Mr Blenkinship likewise described the letter as a "gentlemen's agreement" about a "very, very hot topic" which was not binding, with all members "very united" about the increased insurance cost, and in which "everybody had Mr Mu's interests at heart".[114] From Mr Blenkinship's perspective the meeting was "just a down to earth body corporate working together to collectively get an outcome" which was of great "sensitivity" to all members, such that the letter of commitment and assurance was drafted and considered without legal advice.[115]
3. Whilst this was Mr Blenkinship's belief and perspective, the difficulty with this appreciation is that the interests of KS & RRR Pty Ltd were not "very closely aligned" with other members such that all could be taken to be working "collectively together" to achieve the same outcome.[116] The 'default' operation of s 36(3) of the Unit Titles Act 1975 establishes otherwise.
4. Mr Blenkinship otherwise emphasised, as was common ground, that the tattoo studio had been a "fantastic tenant of Mr Mu", and had not "caused any issue at all" at the complex. The tenants' business was "quiet", they "do their business, do not create any problems, literally they're a ten out of ten tenant, they're great".[117] Mr Blenkinship did not know why insurers "have all of a sudden decided tattoo parlours are unattractive" (in fact, as discussed above at [42] to [43], this has been the case for some years), and accepted that the increased Body Corporate insurance cost from the unit 3 lease was "unbeknownst" to the tenants.
5. Nonetheless from Mr Blenkinship's perspective that meant that the tenants were "liable" for that cost, and the only person who could legally "facilitate" recovery of that cost from the tenants was Mr Mu, since: "It's his liability, it's his tenant, and he passes it on to his tenant".[118] This characterisation does not accord with the legislative scheme, particularly the default position in s 36(3) of the Unit Titles Act 1975 whereby KS & RRR Pty Ltd does not fully bear that "liability" as part of its levied "contribution". KS & RRR Pty Ltd only bears full liability if, after the unit 3 lease was granted, it joins with other members in unanimously agreeing under s 36(4)(b) to accept such liability - and it does not legally follow from that subsequent action by the landlord that the tenants must reimburse that cost.
6. This perspective, the tenor of which was shared by the Body Corporate's other witnesses, reflects the absolute confidence which underpinned the Body Corporate's "advice" to members that the status quo for insurance which pertained prior to the tattoo studio lease could readily be restored. This confidence, and that "advice", was seriously misplaced. As explained above the three "interconnected" resolutions were based on an incorrect premise; at least, it could not confidently be said that KS & RRR Pty Ltd could agree to contribute the increased sum of $21,814.61 on the basis that this sum could readily be recovered from the tenants, or they could be evicted. The tenants were never likely to cooperate in those outcomes; indeed they sought legal advice, and strongly objected. The Body Corporate's "advice", and confidence, seems to have clouded the objectivity of its witnesses in forming their beliefs and perspective about the letter of commitment and assurance and KS & RRR Pty Ltd's true position about the resolutions.
7. Mr Gollow also did not accept that the letter was a "guarantee" that the Body Corporate would pay the increased insurance cost.[119] Likewise Mr Harris said the letter was merely a "commitment and assurance" to "meet again" to "discuss the apportionment", particularly to discuss whether or not to revisit resolution 2 and reallocate the increased cost to all members (by reference to UEV).[120] Again, whilst Mr Gollow and Mr Harris held these beliefs, their positions do not accord with the express text of the letter - namely a "Commitment" and "assurance" to "meet for the purpose of amending the budget to reallocate" the increased insurance cost. That and other objective considerations confirm that Mr Mu's support for resolution 2 was qualified.
8. On 17 March 2023 Whittles issued, on behalf of the Body Corporate, the first of three quarterly invoices to KS & RRR Pty Ltd seeking payment (inter alia) of the sum of $7,573.00 - being the "Admin Insurance Premium Contribution" for the period 1 April to 30 June 2023. The same sum was invoiced on 1 June and 4 September 2023 for the two following quarters. These three quarterly invoices for that line item total $22,719.00, and have not been paid.[121] Accordingly in this proceeding the Body Corporate claims the outstanding "sum of $22,719.00 or such other amount" determined to be the "contribution payable" or "debt" due "as at 18 January 2024".[122] KS & RRR Pty Ltd denies the claim.
9. Mr Carlsund prepared draft minutes after the meeting, and forwarded them to all members including KS & RRR Pty Ltd on 21 March 2023. As noted above (at 86), there was some minimalism, and error (including regulatory non-compliance), in the recording of the minutes - including in the enclosed budget which was (purportedly) amended after the meeting by Mr Carlsund and the Committee, without any written explanation or notice to members that that had occurred. However the principal error in the minutes was that there was no reference at all to the letter of commitment and assurance to KS & RRR Pty Ltd dated 16 March 2023 which was drafted and signed by Mr

Carlsund during the meeting, and countersigned or endorsed by all "members present".[123] 10. Mr Mu said, and I accept, that upon receiving the minutes he immediately complained to Mr Harris that they were not correct including because the letter of commitment and assurance was not attached - which Mr Harris incorrectly considered was not required.[124] At the same time Mr Mu sought legal advice and representation from Mr Eric Withnall, solicitor, about the three resolutions and the minutes.[125] 11. By email dated 31 March 2023 to Mr Carlsund (copied to Mr Mu), Mr Withnall made clear that KS & RRR Pty Ltd did not accept that the draft minutes were accurate, and requested access to "any original records" including "any physical or electronic notes or any recordings" that may exist.[126] 12. By email to Mr Withnall dated 3 April 2023 (copied to Mr Mu and Mr Harris), and after a telephone discussion with him on that day, Mr Carlsund responded that there were no such "original records" since his practice was to discard notes of meetings once minutes were drafted. Mr Carlsund continued that Mr Withnall "may be referring to the attached document produced further to the meeting", being the letter of commitment and assurance dated 16 March 2023 which was drafted and signed immediately prior to the vote for resolution 2.[127] 13. Mr Carlsund's characterisation of the letter as being "further to the meeting" is incorrect. The letter was not "further to", or separate from (or after), the meeting. Objectively it was plainly integral to, and part of what occurred at, the meeting.[128] Accordingly it ought to have been included in the minutes. Mr Carlsund did not do so because, like the Body Corporate's other witnesses, he incorrectly believed that the letter was merely a "letter of comfort" which was of "limited relevance". 14. In cross examination Mr Carlsund accepted, with hindsight (given the "scrutiny" at the hearing), that the letter of commitment and assurance "probably" ought to have been included in the minutes.[129] 15. As contemplated by resolution 2 (including in qualified form), KS & RRR Pty Ltd approached the tenants seeking that they pay the increased cost of $21,814.61. The tenants were legally represented and, unsurprisingly (given the exposition above), refused to pay that cost. By 11 May 2023 KS & RRR Pty Ltd had been advised that the tenants "would not pay the full amount of the increased insurance premiums" and "would challenge any such demand in Court".[130] 16. Also as contemplated by resolution 2 (including in qualified form), KS & RRR Pty Ltd issued a notice to quit on 25 July 2023 about the lack of planning approval for unit 3, which was later withdrawn when approval was granted.[131] 17. By email dated 26 July 2023, having endeavoured to recover the increased cost from the tenants or evict them (as contemplated by resolution 2 in qualified form), KS & RRR Pty Ltd's solicitor, Mr Withnall, formally complained to Mr Carlsund that the minutes were not "accurate". Mr Withnall said that the minutes "misdescribe" resolution 2 as irrevocably determining that KS & RRR Pty Ltd must fully pay the increased cost of $21,840.61 - as distinct from resolution 2 recognising that, if the tenants refused to pay that sum, the question of liability would be finally "determined" at a later meeting (ie with resolution 2 revoked). Mr Withnall emphasised that there was no "basis to hold KS & RRR Pty Ltd entirely responsible for the increased premiums across all units in the plan".[132] Mr Withnall said, and it was not disputed, that the Body Corporate did not respond to this complaint about the minutes (or otherwise to his email).[133] 18. As noted above, the Body Corporate issued further quarterly invoices dated 1 June and 4 September 2023 seeking payment (inter alia) of the sum of $7,573.00 (being the "Admin Insurance Premium Contribution"). A final notice for payment of the "debt" was issued on 1 November 2023.[134] 19. Accordingly, by application dated 24 November 2023 (as amended on 18 January 2024), and pursuant to s 106(1) and (4A)(a) of the Unit Titles Act 1975, the Body Corporate claimed the outstanding "sum of $22,719.00 or such other amount" determined to be the "contribution payable" or "debt" due "as at 18 January 2024".[135] The "debt" of $22,719.00 comprises the "Admin Insurance Premium Contribution" of $7,573.00 for three quarters, as per invoices issued on 17 March 2023, 1 June 2023, and 4 September 2023.[136] 20. KS & RRR Pty Ltd denies the claim on the basis that resolution 2 was never unanimously agreed, or was qualified by the letter of commitment and assurance

dated 16 March 2023. 21. A compulsory conference took place on 29 February 2024, but did not result in a settlement of the dispute. Accordingly the proceeding was set down for hearing on 19 April 2024, with case management orders made for the filing of evidence and written submissions. 22. The Body Corporate's position was that the three resolutions as recorded in the minutes conclusively meant that the sum of $21,840.61 could be recovered from KS & RRR Pty Ltd as a "debt" under s 36(6) of the Unit Titles Act 1975. Accordingly it did not file evidence from its members, or Mr Carlsund, as to the members' discussions at the meeting. Nor did the Body Corporate file the letter of commitment and assurance dated 16 March 2023 which was drafted and signed by all attendees immediately prior to the vote on resolution 2, since the letter was incorrectly regarded as of "limited relevance". 23. On 19 April 2024 KS & RRR Pty Ltd sought that the hearing be vacated on the basis that, since it disputed the accuracy of the minutes, evidence was required from the attendees at the meeting on 16 March 2023 about that question. To establish that this was a live issue, KS & RRR Pty Ltd relied on Mr Withnall's email correspondence with Mr Carlsund dated 31 March, 3 April and 26 July 2023 about that question (see above). These emails were annexed to KS & RRR Pty Ltd's written submission dated 18 April 2024, however inadvertently the letter of commitment and assurance dated 16 March 2023 (which was an attachment to Mr Carlsund's email dated 3 April 2023) was not annexed.[137] 24. Mr Withnall relied on the letter as demonstrating that the minutes were not accurate, including if it was actioned after the meeting.[138] The Body Corporate's legal representatives first became aware of Mr Withnall's email dated 26 July 2023 when KS & RRR Pty Ltd's written submission (and annexures) was received the previous day (ie on 18 April 2024).[139] 25. The hearing was vacated, and rescheduled for 28 May 2024. The Body Corporate's oral application for costs thrown away was reserved. The Body Corporate filed declarations from its witnesses, but did not adduce the letter of commitment and assurance on the basis that it was of "limited relevance". 26. The hearing proceeded on 28 May 2024, with KS & RRR Pty Ltd now represented

by Dr Kelly (who was retained the previous day). Mr Mu had earlier signed a

declaration dated 3 May 2024 (which was filed by Dr Kelly), which referred to the letter of commitment and assurance but did not annex a copy. 27. The letter was first produced to the Tribunal by KS & RRR Pty Ltd during the cross examination of Mr Harris on 28 May 2024, with the Body Corporate's objection to its receipt on the basis of relevance overruled. Mr Cozens properly conceded that the Body Corporate was not prejudiced by the receipt of the letter, and by way of assistance had appropriately proofed the Body Corporate's witnesses about it prior to the hearing. The hearing proceeded on that basis.

1. I consider the issues which arise in this matter under the following subheadings.

Whether resolutions 1, 2 and 3 were endorsed on 16 March 2023

1. For the reasons explained above the evidence demonstrates that the Body Corporate's conduct of the meeting on 16 March 2023 in relation to resolutions 1, 2 and 3 miscarried.
2. Mr Mu believed that his support for resolution 2 was qualified by the letter of commitment and assurance, on the basis explained above. The other members present, and Mr Carlsund, believed that they were voting for resolution 2 on the basis that it was not qualified by the letter.
3. Consequently, and contrary to the minutes which were circulated on 21 March 2023, there was no unanimous support by the members for resolution 2 (in unqualified form) - because as a matter of fact Mr Mu did not support that resolution. Rather, on behalf of KS & RRR Pty Ltd, Mr Mu supported resolution 2 on the basis that it was qualified by the letter of commitment and assurance (on the basis explained above). Considered objectively, it is wholly unsurprising that he did so.
4. The fact that the Body Corporate's witnesses believed otherwise is not determinative of Mr Mu's actual belief or KS & RRR Pty Ltd's position. The confidence in which the Body Corporate has pursued this application, and the insistence by its witnesses that KS & RRR Pty Ltd gave unqualified endorsement to resolution 2 (in unqualified form), demonstrates a lack of objectivity in appreciating what actually occurred at the meeting on 16 March 2023. The witnesses' belief appears to reflect in part an unjustified level of certainty and conviction, informed by the Body Corporate's incorrect and misplaced "advice", that the status quo for insurance which pertained prior to the tattoo studio lease could readily be restored for all members.
5. It follows, since resolution 3 was contingent on the endorsement of resolution 2 (in that it amended the budget and recorded altered contributions for unit 3 purportedly under s 36(4)(b)), that it cannot be said that resolution 3 was lawfully passed. The resolution only has effect if resolution 2 was endorsed, which was not the case.
6. Resolution 3 was also contingent on the endorsement of resolution 1, in that it amended the budget by inserting a line item entitled "Insurance - Business interruption" (under the heading 'Expenditure') in the sum of $15,000.00.[140] Accordingly, and given that all

three resolutions were "interconnected" (essentially as part of a package), the better view is that resolution 1 was not in fact endorsed at the meeting on 16 March 2023, although strictly it is not necessary to decide this question insofar as the Body Corporate's claim to recover a "debt" is concerned. 7. This finding of fact, that KS & RRR Pty Ltd's gave only qualified support for resolution 2 at the meeting on 16 March 2023 (meaning that it was not unanimously supported in unqualified form), is determinative of this proceeding in favour of KS & RRR Pty Ltd.

1. Clause 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009 requires that there be 21 working days' notice to members of a unanimous resolution (ie resolution 2) and 14 working days' notice for other resolutions (ie resolutions 1 and 3).
2. Clause 30(3) provides:

The proceedings at the meeting are not invalidated only because notice of the meeting is not given in accordance with this clause.

1. Clause 30(4) provides that where insufficient notice is given, the meeting must be adjourned to a later date if a member so requests (either before or at the meeting).
2. The notice dated 8 March 2023 gave members only six working days' written notice of the general meeting on 16 March 2023, and its proposed resolutions - particularly nos 1, 2 and 3. As the Body Corporate conceded, this meant that there was non-compliance with the notice requirements in cl 30(1)(b)(i) and (ii).[141]
3. The Body Corporate submitted, first, that the non-compliance was merely "technical", meaning that pursuant to cl 30(3) resolutions 1, 2 and 3 were "not invalidated" by the lack of notice, particularly since there is no evidence that KS & RRR Pty Ltd (or any member) requested that the meeting be adjourned pursuant to cl 30(4). The Body Corporate also characterised meeting as "urgent" so as to justify an abridgement of the regulatory time periods, since it was "imperative to revise the budget and update the levy notices".[142]
4. I do not accept this submission. The non-compliance with the regulatory time periods occurred in circumstances where the resolutions concerned issues which were legally complex, with the Body Corporate members having markedly different interests. The object of the legislative periods is to ensure that there is sufficient time for each member to consider proposed resolutions - who often enough may not be well versed in meeting procedure (as was the case here), including by obtaining legal advice.
5. That legislative object was not fulfilled here. In Mr Blenkinship's words, the resolutions concerned a "very, very hot topic" which had a differential effect on the members' respective interests. It was incumbent on the Body Corporate to ensure that each member had sufficient time to carefully consider the resolutions (including in light of

legal advice), particularly by fully complying with the regulatory time periods. 6. The fact that there was no request that the meeting be adjourned pursuant to cl 30(4) does not mean that the non-compliance with the notice requirements must be regarded as merely "technical". Rather, that fact serves to confirm that the attendees at the meeting (including Mr Mu) were not well versed in meeting procedure, which underscores that the regulatory time periods ought to have been complied with. 7. Nor is it the case, as the Body Corporate submitted, that there is no evidence of "any "substantial injustice" to any member as a result of the technical non-compliance". In fact, in my view, the circumstances of this matter demonstrate that the regulatory non-compliance and conduct of the meeting significantly contributed to injustice by limiting the capacity of KS & RRR Pty Ltd to obtain legal advice about the resolutions. Indeed the Body Corporate provided no opportunity at all to KS & RRR Pty Ltd to obtain legal advice about the letter of commitment and assurance which was drafted, and signed, during the meeting (immediately prior to the vote on resolution 2). 8. Finally the importance of revising the budget and updating levy notices did not constitute urgency such that regulatory requirements could be ignored (with the members taken as having waived those requirements), particularly without any formal notice to the members that that was proposed. This subject matter is in marked contrast to the Body Corporate's extraordinary general meeting on 22 December 2022, where it was necessary for the members to promptly consider and resolve that the Body Corporate would not insure the strata complex for a period of "up to 90 days" whilst an alternative insurer was sourced - thus ensuring that the Body Corporate did not (imminently) breach s 80(2) of the Unit Titles Act 1975.[143] 9. Secondly, the Body Corporate submitted by reference to Dargavel v Cameron [2002] FCA 1234 per Goldberg J that cl 30(3) and (4) gave legislative form to a "generally well understood governance principle" that a corporation's omission to give sufficient notice is "cured" where all members attend - "provided that no member objects at the meeting or requests an adjournment". 10. This submission overstates the principle identified by Goldberg J. 11. At [80] his Honour discussed the capacity for "business being brought forward" where all members are present and "consent" to notice requirements being waived. Contrary to the Body Corporate's submission, the omission of KS & RRR Pty Ltd (or any member) to object or request an adjournment does not demonstrate its "consent" to the waiver of notice requirements. The Body Corporate's non-compliance with regulatory time periods was not identified, or discussed, at the meeting. In the circumstances of this matter it cannot be said that the members present, whether by word or by action (or omission), agreed that the requirements were waived for the three resolutions. 12. The next question, having established that there was non-compliance with regulatory time periods, is whether that resulted in invalidity of the three resolutions. Resolution of this question requires careful consideration of the legislation. As the ACT Civil and Administrative Tribunal explained in Spedding v The Owners Units Plan 3941 (Unit Titles) [2025] ACAT 12 at [42] and [43], whether there is invalidity requires "application

of the principles of statutory interpretation and the common law of meetings" - particularly where the legislation does not make "explicit provision" about that question. 13. As the High Court explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91] and [93] (per Gummow, Kirby and Hayne JJ, footnotes omitted):

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

1. The inclusion of cl 30(3) in the regulations demonstrates a legislative intent that whilst a mere lack of notice does not result in invalidity, that fact combined with other circumstances may do so.
2. Such other circumstances must include where regulatory non-compliance significantly contributes to injustice by limiting the capacity of a member to obtain legal advice about proposed resolutions (including a letter of commitment and assurance which is drafted and signed during a meeting). In my view, that was the case for the Body Corporate meeting on 16 March 2023.
3. Accordingly I consider that the Body Corporate's regulatory non-compliance was a substantial contravention of the legislative mandate, such that resolutions 1, 2 and 3 are void ab initio due to contravention of cl 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009.[144]

1. Section 106(4) of the Unit Titles Act 1975 provides that, for resolving a dispute, the "Tribunal may make any orders the Tribunal considers appropriate".
2. Pursuant to s 106(4A)(d) this includes an "order to confirm, vary or reverse a decision" of the Body Corporate.
3. Given my factual finding that there was not unanimous support for resolution 2 at the Body Corporate meeting on 16 March 2023 such that it, and resolutions 1 and 3 (which were contingent on the validity of resolution 2), was not carried, the appropriate order is that the Body Corporate's application be dismissed.
4. My conclusion that the Body Corporate's substantial contravention of the regulatory notice requirements for the meeting mean that resolutions 1, 2 and 3 are void ab initio also means that the Body Corporate's application must be dismissed.
5. This means, since resolutions 2 and 3 were never carried and/or are void, the Body Corporate has not yet given "notice" under s 36(5) of the Unit Titles Act 1975 of a determined "contribution" for the "Admin Insurance Premium Contribution" (of $7,573.00 for unit 3) which was specified in the three quarterly invoices issued to KS & RRR Pty Ltd on 17 March 2023, 1 June 2023, and 4 September 2023 (in sum being $22,719.00). This non-compliance with s 36(5) renders each invoice invalid (at least insofar as the invoices concern that item), and means there is no "recoverable debt" of $22,719.00 which may be recovered by proceedings in the Tribunal under s 6(a) of the Small Claims Act 2016.
6. Accordingly I order that the application is dismissed below.[145]
7. I note that if, contrary to my factual finding and regulatory construction, resolutions 1, 2 and 3 are valid, in the circumstances of this matter it would be necessary to consider whether these three resolutions should be reversed with effect from 16 March 2023, by exercise of power under s 106(4A)(d). That provision empowers the Tribunal, where "appropriate", to "confirm, vary or reverse" a Body Corporate decision.
8. In my view those circumstances, as set out above, would amply justify so exercising that power, particularly given that the three resolutions were based on misplaced "advice" and an incorrect premise, and also given that the Body Corporate's conduct of the meeting significantly contributed to injustice by limiting the capacity of KS & RRR Pty Ltd to obtain legal advice about the resolutions and the letter of commitment and assurance dated 16 March 2023.
9. However it is not necessary to make any order under s 106(4A)(d) given my factual finding that the three resolutions were not passed, and my separate conclusion that the resolutions are void ab initio due to non-compliance with regulatory notice requirements. Indeed there is no power to do so, since a Body Corporate decision which never occurred or is void cannot be reversed.[146]

1. The Body Corporate applied for costs thrown away given the adjournment of the original hearing on 19 April 2024, at which time I reserved consideration of this question.
2. In that respect, as the Body Corporate noted in its amended application dated 18 January 2024 when seeking costs, s 46 of the Unit Titles Act 1975 provides that a body corporate may recover incurred "expenditure" as a "debt", where that

"expenditure" was "required or authorised" by that statute and was "rendered

necessary by reason of any wilful or negligent act or omission" by a member".[147] 3. I reject the Body Corporate's application on several bases. 4. First, there is a presumption in s 131 of the Northern Territory Civil and Administrative Tribunal Act that parties should bear their own costs unless the Tribunal orders otherwise after taking into account the considerations in ss 132 and 133.[148] Those considerations include that a party who has "substantially succeeded against another party would normally recover" the application fee (s 132(2)(ba)(i)). 5. The Body Corporate has not succeeded in its application; rather, KS & RRR Pty Ltd has been wholly successful in its response. 6. Secondly, the principal underlying error in this proceeding was the Body Corporate's insistence that the letter of commitment and assurance dated 16 March 2023 was of "limited relevance". On that flawed basis the letter was not adduced by the Body Corporate, and it unsuccessfully objected to KS & RRR Pty Ltd relying on the letter at the hearing on 28 May 2024. 7. It is likely, if the hearing had proceeded on 19 April 2024, that it would have been necessary to adjourn the hearing in any event so that the Body Corporate's witnesses could formally give evidence about the letter. 8. In these circumstances it is not appropriate that the Body Corporate recover its costs thrown away on 19 April 2024. 9. Thirdly, for two reasons s 46 of the Unit Titles Act 1975 does not alter, or affect, that conclusion. 10. The first reason is that, on any view, s 46 is not engaged, since there has been no "wilful or negligent act or omission" in breach of the statute by KS & RRR Pty Ltd. My factual finding that the three resolutions were not passed, and my separate conclusion that the resolutions are void ab initio due to non-compliance with regulatory notice requirements, means that KS & RRR Pty Ltd did not breach the statute by failing to pay its contributions. 11. The second reason concerns the relationship between s 46 of the Unit Titles Act 1975 and ss 131 and 132 of the Northern Territory Civil and Administrative Tribunal Act 2014. Section 132(1) empowers the Tribunal to "make a costs order", subject to taking into account the considerations in subsection (2). Where this occurs the presumption in s 131 that "parties bear their own costs in the proceeding before the Tribunal" is displaced. 12. Where a costs order is made, the sum identified or assessed may be recovered by a successful party as a debt or "monetary order" by filing it in the Local Court (s 84). So appreciated, properly construed, s 46 of the Unit Titles Act 1975 does not apply to the question of costs, because, if so, it would purport to determine the existence of a "debt" vis-à-vis the conduct of legal proceedings prior to the Tribunal considering that question and determining the existence of a debt under ss 131 and 132 of the Northern

Territory Civil and Administrative Tribunal Act 2014. 13. Accordingly I order below that the Body Corporate's application for costs thrown away on 19 April 2024 is dismissed.[149]

1. I order as follows:
   1. The application is dismissed.
   2. The applicant's application for costs thrown away for the originally scheduled hearing on 19 April 2024 is dismissed.

[1] Arenseear Pty Ltd purchased the 19 units from another owner at some time between 22 December 2022 (the date of a Body Corporate meeting attended by the former owner) and 6 February 2023 (the date of a Body Corporate email copied to Mr Blenkinship (see hearing book (HB) 199 and 215). Subsequently Arenseear Pty Ltd purchased another unit, and now owns 20 units in the complex.

[2] The Body Corporate appointed Whittles at its annual general meeting on 24 November 2022 (motion 3, minutes, HB 203).

[3] Subject to annual adjustment as per the consumer price index, and market review (cl 5.3 and 5.4 of the lease).

[4] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 35 min 10 sec).

[5] Noting that the body piercing component of the business did not affect the availability, or cost, of insurance.

[6] On 20 December 2022 the Body Corporate's then insurer (CHU) advised that it would not offer further insurance for the 2023/24 financial year due to the existence of the tattoo studio in unit 3.

[7] Declaration Andrea Daglas, branch manager, Whittles Body Corporate Management Pty Ltd, 14 March 2024, at [7], HB 141). The estimate of $56,890.00 comprises the sum of an "indicative costing" of $53,570.00 (from the Body Corporate's then insurer, CHU) and $3,320.00 (ie Marina Operator Liability Insurance as purchased from QBE Insurance (Australia) on 23 December 2022).

[8] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 34 min 20 sec).

[9] Email dated 20 December 2022 MGA Insurance Group to Mr Carlsund, which was forwarded to Mr Harris and Mr Mu on that date (HB 212).

[10] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~1 hr 54 min 16 sec). The purchase occurred between 22 December 2022 and 6 February 2023 (see fn 1).

[11] The "unit entitlement" is "certified by a valuer" by reference to the "improved capital value" of each unit (see definitions in s 4 of the Unit Titles Act 1975.

[12] See the definition of "unanimous resolution" in 7(4) of the Unit Titles Act 1975.

[13] To be precise, the UEV for unit 3 is 745 (out of a total unit entitlement of 5000), which is also expressed in the Body Corporate's documentation as 0.149 (ie 14.9% of the total). Unit 3 has the highest valuation of any of the 26 units in the strata complex (as of 1 April 2022), and thus the highest UEV (HB 349).

[14] This quantum of $3,250.38 (rounded up) is the Tribunal's calculation from the evidence; it was not articulated in the parties' submissions. Additionally, under s 36(3), KS & RRR Pty Ltd is liable to pay 14.9% of the remaining annual insurance cost of $56,890.00 (see fn 7), being $8,476.61 per year (Body Corporate's submission dated 14 April 2024 at [17] (HB 48)). Liability for this payment is not in dispute.

[15] The first limb of resolution 2 replicates the UEV formula in s 36(3) for the estimated cost (from time to time) of insurance if there is no tattoo studio, with that replicated formula having effect under s 36(4)(b).

[16] Body Corporate's submission dated 14 April 2024 at [1b)] (HB 43). The temporal limitation of 18 January 2024 operates to further amend the amended application, which claimed "any additional amounts that may accrue" up to the date of hearing (HB 24 and 26) - which subsequently occurred on 28 May 2024. So appreciated, the claim does not exceed the Tribunal's jurisdiction under ss 5 and 6 of the Small Claims Act 2016 which is limited to $25,000.00.

[17] HB 191 to 193. The quarterly sum of $7,573.00 multiplied by 3 is $22,719.00. The invoices each constituted a "notice" of the determined "contribution" under s 36(5) of the Unit Titles Act 1975. The invoices also sought three quarterly payments of "Admin Contributions Amended" ($1,315.00) and "Sinking Contributions" ($820.00), which total $6,405.00. KS & RRR Pty Ltd paid that total sum on 28 November 2023.

[18] Five unit owners physically attended the meeting and countersigned the letter: ie Mr Mu, Mr Harris, Mr Blenkinship, Mr Gollow; and Mr Seth Chin (the then owner of one unit). The owner of another unit, Lay & Sons Organisation Pty Ltd represented by Mr Chris Lay, attended the meeting by telephone, and verbally endorsed the letter. The owners of the remaining unit, Mr Steve Compain and Mrs Cheryl Compain, attended by proxy, and provided a "Proxy Voting Summary" dated 15 March 2023 which indicated their support for resolution 2 (and other resolutions).

[19] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 45 min 53 sec).

[20] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~1 hr 54 min 16 sec, ~2 hr 47 min 38 sec).

[21] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 2 min 15 sec).

[22] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 50 min 49 sec).

[23] A motion is passed by special resolution if a two thirds majority of the votes cast favour the motion, and the UEV of the units for votes cast against do not exceed 25% of the total unit entitlements (s 8 of the Unit Titles Act 1975).

[24] Meeting minutes 16 March 2023 (HB 347). Section 36(1) of the Unit Titles Act 1975 empowers a body corporate to "determine" the amount required by way of "contributions from its members" to meet expenditure. Pursuant to s 36(5) the body corporate then gives "notice" of the determined "contribution" or "amount payable" to its members. A determined contribution which is not paid by the due date is "recoverable as a debt" from the member (s 36(6)).

[25] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 43 min 50 sec). The formal "advice" was not in evidence, and was said to be "privileged". Dr Kelly, for KS & RRR Pty Ltd, did not call for that advice to be produced; it was not integral to the cross examination then occurring. There may be a question as to whether any privilege has been waived since: the content of the "advice" was conveyed by Mr Harris to Mr Mu (and the other members present) at the meeting; the Body Corporate relied on that "advice" as underpinning and justifying the three resolutions; and the Body Corporate facilitated "guidance" and advice so that Mr Mu "could administer his rights under the lease" (Mr Harris's evidence, audio of hearing 28 May 2024 ~35 min 30 sec). It is not necessary to resolve this question.

[26] Regulation 48(1)(b) of schedule 1 of the Unit Titles (Management Modules) Regulations 2009 requires that a body corporate keep accurate "minutes of general meetings". The minutes were circulated to members on 21 March 2023, and were received into evidence although not under the "seal of the corporation" - so as to be "evidence of the facts" stated therein (applying s 105 of the Unit Titles Act 1975). Nothing turns on whether the minutes were under seal.

[27] HB 347. It is clear from the text of resolution 3 (and the confirmatory "Note" included in the minutes) that resolution 3 incorporates an attached revised budget, which purports to alter the apportionment of contributions for each unit as per resolution 2 (under the heading 'Calculation of Contributions') (HB 348 to 349).

[28] Given that all three resolutions were "interconnected" (essentially as part of a package), the better view is also that resolution 1 was not in fact endorsed on 16 March 2023, although strictly it is not necessary to decide this question insofar as the Body Corporate's claim to recover a "debt" is concerned.

[29] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 17 min 38 sec). The resolutions are "interconnected" in that they form a response to the same subject matter; specifically, the expenditure and contributions identified in resolutions 1 and 2 form amendments to the budget under resolution 3.

[30] Clause 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009.

[31] Body Corporate's submission dated 20 June 2024.

[32] Clause 30(3) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009 provides that the "proceedings at the meeting are not invalidated only because notice of the meeting is not given in accordance with" the legislative notice periods.

[33] In Dargavel v Cameron [2002] FCA 1234 at [80] Goldberg J discussed the capacity for "business being brought forward" where all members are present and "consent" to notice requirements being waived.

[34] The remaining resolution considered (and unanimously carried) at the meeting, no 4, authorised Mr Harris to keep a dog at his unit. Resolution 4 is not subject to this proceeding, and I express no view about it or its validity.

[35] That is, in the circumstances it would not be "appropriate" under s 106(4) of the Unit Titles Act 1975 that the Tribunal instead order in this proceeding that KS & RRR Pty Ltd is liable to pay the lesser sum of $3,250.38, by reference to the 'default' position about member contributions in s 36(3). Rather, the proper course is that the Body Corporate further consider the question of insurance contributions under s 36. If, in future, a member does not pay a contribution determined by a valid resolution and determination under that provision, the Body Corporate may then recover that amount as a "debt" under s 36(6).

[36] Subject to annual adjustment as per the consumer price index, and market review (cl 5.3 and 5.4 of the lease).

[37] Mr Withnall's advice to the Tribunal (audio of hearing 19 April 2024 ~1 hr 14 min 41 sec).

[38] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 35 min 10 sec).

[39] Meeting minutes 24 November 2022 (HB 202 ff).

[40] An interim resolution may only be made for a motion that may be passed by an ordinary resolution (cl 32(4) of the Unit Titles (Management Modules) Regulations 2009). Mr Cozens advised the Tribunal that the interim resolutions were subsequently confirmed pursuant to that process (audio of hearing 19 April 2024 ~1 hr 46 min 53 sec).

[44] HB 207, with the "attached" budget at HB 210 ff. It follows that the Body Corporate and its members also were not aware of the prospect of an increased cost for insurance in May 2022 when the tattoo studio lease commenced.

[45] The UEV for unit 3 was recorded as "745", which is 0.149 or 14.9% of the total unit entitlement of 5,000 (HB 211).

[47] See: submission Owners Corporation Network (ACT) 26 March 2025 p 3, ACT Legislative Assembly; Docklands News Renewing an owners' corporation's policy of insurance just got harder 29 May 2024, Tom Bacon, Strata Title Lawyers.

[48] Online article Who Pays For Commercial Building Insurance On a Commercial Property? 22 May 2023, William Paull, Consolidated Insurance Brokers.

[49] Section 82 of the Strata Schemes Management Act 2015 (NSW). This process also existed under the preceding strata legislation: ss 77 and 149(2) of the Strata Schemes Management Act 1996 (NSW).

[50] Section 23A(3)(c) of the Owners Corporations Act 2006 (Vic).

[51] Section 46 of the Unit Titles Act 1975 (NT) empowers a body corporate to recover expenditure from a lot owner where the lot owner was at "fault" (eg a "wilful or negligent act or omission" by that lot owner), but that does not cover increased insurance premiums from a changed use of a lot.

[52] HB 212. CHU advised that insurance cover was refused even if the joint tenants restricted their business at unit 3 to body piercing only, with "any Tattoo activity" occurring elsewhere. Insurance cover would not have been refused if the business was restricted to body piercing only.

[53] Declaration Andrea Daglas, branch manager, Whittles Body Corporate Management Pty Ltd, 14 March 2024, at [7], HB 141). The estimate of $56,890.00 comprises the sum of an "indicative costing" of $53,570.00 (from the Body Corporate's then insurer, CHU) and $3,320.00 (ie Marina Operator Liability Insurance as purchased from QBE Insurance (Australia) on 23 December 2022).

[54] That is, quite apart from the tattoo studio, the cost of insurance had significantly increased.

[55] Meeting minutes 22 December 2022 (HB 199 ff). Five unit owners attended in person, with the remaining two unit owners appointing a "Proxy with voting summary" (ie Lay & Sons Organisation Pty Ltd, and Mr and Mrs Compain). Arenseear Pty Ltd (represented by Mr Blenkinship) was not present since it was not then a member of the Body Corporate; Arenseear Pty Ltd subsequently became a member when 19 units were purchased from a former owner (that owner was present at the meeting).

[56] In summary those risks were damage from: "fire, lightning, tempest, earthquake and explosion"; riot, civil commotion and strikes; "malicious damage"; burst or defective boilers, water tanks and pipes; and impact from aircraft and road vehicles.

[57] Body Corporate's submission dated 14 April 2024 at [10] (HB 47).

[58] This sum comprised $71,589.61 (from One Underwriting Pty Ltd for 8 February 2023 to 8 February 2024), plus $3,795.00 (Marina Broadform Public Liability Insurance from the Territory Insurance Office) and $3,320.00 (Marina Operator Liability Insurance from QBE Insurance (Australia)) (both for 23 December 2022 to 23 December 2023).

[59] Declaration Andrea Daglas, branch manager, Whittles Body Corporate Management Pty Ltd, 14 March 2024, at [7], HB 141). The estimate of $56,890.00 comprises the sum of an "indicative costing" of $53,570.00 (from the Body Corporate's then insurer, CHU) and $3,320.00 (ie Marina Operator Liability Insurance as purchased from QBE Insurance (Australia) on 23 December 2022).

[60] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 34 min 20 sec). Further Arenseear Pty Ltd was not apprised of the issue when it purchased 19 units from another corporate owner at some time between 22 December 2022 and 6 February 2023, albeit that by 22 December 2022 (the date of a general meeting attended by all members which discussed the issue) the Body Corporate and its then members were apprised of it (Mr Blenkinship's evidence, audio of hearing 28 May 2024 ~1 hr 54 min 16 sec).

[62] HB 292 to 293. A fourth motion considered (and unanimously carried) at the meeting, no 4, authorised Mr Harris to keep a dog at his unit. Resolution 4 is not subject to this proceeding, and I express no view about it.

[63] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 17 min 38 sec). The resolutions are "interconnected" in that they form a response to the same subject matter; specifically, the expenditure and contributions identified in resolutions 1 and 2 form amendments to the budget under resolution 3.

[64] HB 348 to 350. The budget for the annual general meeting on 22 November 2024 is at HB 210 to 211.

[65] That is $21,814.61, rounded up (HB 253). The quoted expression "Once-off" was capitalised, and in bold, in the original. It referred only to a "Once-off" annual payment allocated to unit 3, with a similar payment also to be levied in subsequent years while the tattoo studio lease remained in place.

[66] The "total contributions" were comprised by the annual sum of unit contributions ($68,386.80) and KS & RRR Pty Ltd's proposed payment of increased cost for insurance for unit 3 ($50,259.61), less "Advances" of $14,319.00 received as income.

[67] As explained in an email dated 21 January 2025 from Ms Daglas, Whittles branch manager, to the Body Corporate's solicitor, which was filed by the Body Corporate on 28 January 2025.

[68] HB 344 ff (at 348). The sum of $76,486.10 was comprised by the sum of $51,453.00 (ie total unit contributions) plus $39,352.10 (ie the increased cost of insurance for unit 3) less "Advances" of $14,319.00 received as income.

[69] Mr Carlsund said that "there was no consideration or agreement at the meeting in regard to increasing the total unit contributions of $67,610.00 as endorsed on 1 October 2022 (motion no 9), to explain the error in resolution 3 being corrected in the minutes and budget forwarded to unit owners on 21 March 2023 (see Ms Daglas's email dated 21 January 2025 to the Body Corporate's solicitor, as filed on 28 January 2025). Nonetheless resolution 3 was said to have been unanimously endorsed by the members on 16 March 2023, meaning that the erroneous figure of $104,327.41 for anticipated income (particularly from unit contributions) was also endorsed. In this circumstance it was necessary that the error be corrected by resolution at a subsequent general meeting. Given my conclusion below that resolution 3 is void, the need for such correction is moot.

[70] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 43 min 50 sec). The formal "advice" was not in evidence, and was said to be "privileged". Dr Kelly, for KS & RRR Pty Ltd, did not call for that advice to be produced; it was not integral to the cross examination then occurring. There may be a question as to whether any privilege has been waived since: the content of the "advice" was conveyed by Mr Harris to Mr Mu (and the other members present) at the meeting; the Body Corporate relied on that "advice" as underpinning and justifying the three resolutions; and the Body Corporate facilitated "guidance" and advice so that Mr Mu "could administer his rights under the lease" (Mr Harris's evidence, audio of hearing 28 May 2024 ~35 min 30 sec). It is not necessary to resolve this question.

[71] As stated above, pursuant to the 'default' position in s 36(3) KS & RRR Pty Ltd was liable to pay 14.9% of the increased cost of $21,814.61 - being $3,250.38 (rounded up).

[73] Mr Mu's evidence (audio of hearing 28 May 2024 ~5 hr 13 min 50 sec).

[75] Reg 4 and Form 1 Part A (in the Schedule) of the Business Tenancies (Fair Dealings) Regulations 2004).

[76] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 37 min 1 sec).

[77] In that respect, this factual question as to the former owner's disclosure is not determinative of the outcome of this proceeding. Rather, the principal issue is whether KS & RRR Pty Ltd gave only qualified support for resolution 2, meaning that there was no unanimity amongst members such that it was not passed. I conclude to that effect below. This factual finding determines the proceeding in favour of KS & RRR Pty Ltd. Accordingly it was not necessary, for completeness and after the hearing, to request that the former owner's disclosure to the tenants under s 19(1) of the Business Tenancies (Fair Dealings) Act 2003 be adduced.

[78] Mr Cozen's submission on behalf of the Body Corporate (audio of hearing 28 May 2024 ~5 hr 16 min 58 sec).

[79] Dr Kelly's submission on behalf of KS & RRR Pty Ltd (audio of hearing 28 May 2024 ~5 hr 24 min 27 sec). Clause 18.4 of the lease provides:

"The Tenant must not do anything which may affect rights under any insurance or which may increase an insurance premium payable in connection with the Premises, the Building, or Property in them without the Owner's consent. If the Owner consents in the Tenant must pay any increased premiums."

By definition the terms "Premises" and "Building" concern only unit 3, not the broader strata complex (cl 1.1 read with Part A).

[80] Clause 18.4 of the lease (see fn 79) provides that the tenants must "not do anything" which "may increase an insurance premium payable in connection with the Premises, the Building or Property in them [defined in cl 1.1 as unit 3]" (unless with the "Owner's consent"). As a matter of construction the definition of "outgoings" in cl 1.1 as including all "levies and charges imposed under strata, community title or similar legislation in respect of the Land [defined as unit 3]" - which includes a "contribution" under s 36(3) or (4) of the Unit Titles Act 1975, supports the view that the tenants' reimbursement of the landlord's insurance is solely the subject of cl 10.1(a). However even if the tenants' obligation under cl 18.4 were to extend to an increased "premium" for the Body Corporate's insurance policy (as distinct from the landlord's insurance policy), that provision does not include any mechanism whereby the Body Corporate itself can recover that cost - since it is not a party to the lease. The "premium" itself is not directly incurred by the landlord; it is liable only for such "contributions" as may be apportioned to it pursuant to a "determination" under s 36(3) or (4) of the Unit Titles Act 1975, with a portion of a "contribution" equating with part of the Body Corporate's insurance "premium". Nor does a breach of cl 18.4 trigger the tenants' indemnification of the landlord under cl 18.5. That indemnity only applies where the landlord incurs expense in "doing anything which the Tenant must do under this lease but has not done". This criterion is not fulfilled where the tenants continue to operate the tattoo studio, being the "Permitted Use" which is expressly authorised by the lease.

[81] Mr Cozen's submission on behalf of the Body Corporate (audio of hearing 28 May 2024 ~5 hr 22 min 18 sec).

[82] However this legal conclusion is not essential to the outcome of this proceeding. The principal issue is whether KS & RRR Pty Ltd gave only qualified support for resolution 2, meaning that there was no unanimity amongst members such that it was not passed. I so conclude below, which is determinative in favour of KS & RRR Pty Ltd.

[83] Clause 30(1)(b)(i) and (ii) of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009.

[84] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 20 min 54 sec and ~2 hr 27 min 36 sec).

[85] See Dargavel v Cameron [2002] FCA 1234 at [80] Goldberg J, as discussed below. The remaining resolution considered (and unanimously carried) at the meeting, no 4, authorised Mr Harris to keep a dog at his unit. Resolution 4 is not subject to this proceeding, and I express no view about it or its validity.

[87] Respectively at HB 340 to 341 and HB 299 to 302.

[88] HB 351 to 352. Mr and Mrs Compain also supported a fourth motion to authorise Mr Harris to keep a dog at his unit, which is not relevant (and was not contentious). It was not necessary that the form identify the name of the Whittles representative who would perform the proxy role (see Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005 at [34] to [49] and the authorities therein).

Clauses 40 and 41 of Schedule 1 of the Unit Titles (Management Modules) Regulations 2009 respectively provide for alternative methods of voting, ie: by proxy, for any resolution; and by absentee vote for a resolution which must be unanimous or without dissent (but not otherwise). Pursuant to cl 40 a meeting notice is not required to enclose proxy forms (although Mr Carlsund appropriately did so on 8 and 15 March 2023), however where applicable an "absentee voting form" must be enclosed (cl 41(1)(a)). The Body Corporate proceeded on the basis that the "Proxy Voting Summary" was part of Mr and Mrs Compain's proxy authorisation (which I accept), rather than (in part) being an absentee vote for resolution 2 (a unanimous resolution) (see email 28 January 2025 from the Body Corporate's solicitor to the Tribunal). This would mean that the meeting notice did not comply with cl 41(1)(a) (vis-à-vis resolution 2) in that an "absentee voting form" was not enclosed, but nothing turns on that.

[89] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 29 min 35 sec).

[90] Meeting minutes 16 March 2023 (HB 347 ff).

[91] Mr Harris's evidence (audio of hearing 28 May 2024 ~50 min 45 sec).

[92] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~2 hr 57 min 43 sec and ~3 hr 33 min 30 sec).

[93] Mr Mu's declaration 3 May 2024 (filed at the hearing). Mr Gollow could not recall whether Mr Carlsund sequentially read out the resolutions, but agreed that the latter was attentive or "quite pedantic" in ensuring that a response was received from every member about each resolution (audio of hearing 28 May 2024 ~4 hr 10 min 21 sec ff).

[94] The minutes do not record a mover or seconder for any of the motions, and the oral evidence at the hearing did not suggest otherwise. At common law, although it is "usual for the Chair not to accept a motion until it has formally been moved by a person present at the meeting, this is not a legal requirement" - and a motion may be put, and voted upon, "even if it has not been formally proposed or seconded: Re Horbury Bridge Coal, Iron and Waggon Co (1879) 11 Ch D 109" (Horsley's Meetings Procedure, Law and Practice 4th Ed Butterworths 1998 by AD Lang at [10.10] p 105). Nonetheless the practice of requiring a mover and seconder before a motion is advantageous, since it ensures formality which in turn reduces possible misunderstanding or confusion.

[95] Meeting minutes 16 March 2023: see note to motion 3 (HB 347) and the amended budget (HB 348); cf the original budget (HB 299). This amendment was not discussed in oral evidence at the hearing, but was the subject of subsequent submissions and evidence (see Ms Daglas's email dated 21 January 2025 to the Body Corporate's solicitor, as filed on 28 January 2025). I accept that a resolution of which notice has been given, including a special resolution, may be amended during a meeting provided that the amendment does not "alter its nature": see Totally and Permanently Incapacitated Veterans Association of New South Wales LTD v Gadd Matter No 2626/98 [1998] NSWSC 384 per Young J citing Horsley's Meetings Procedure, Law and Practice 3rd Ed Butterworths 1989 p 489 (and several authorities). His Honour did not follow a contrary English authority which precluded any amendment of special resolutions (Moorgate Mercantile Holdings Ltd [1980] 1 All ER 40).

[96] Mr Lay, representing Lay & Sons Organisation Pty Ltd (a unit owner), did not sign the letter - since he attended the meeting by telephone. However Mr Gollow recalled that the letter was read out to Mr Lay, and the letter records that it was supported by the "members present" which included Mr Lay (Mr Gollow's evidence, audio of hearing 28 May 2024 ~4 hr 14 min 55 sec).

[97] Regulation 48(1)(b) of schedule 1 of the Unit Titles (Management Modules) Regulations 2009 requires that a body corporate keep accurate "minutes of general meetings". The minutes were circulated to members on 21 March 2023, and were received into evidence although not under the "seal of the corporation" - so as to be "evidence of the facts" stated therein (applying s 105 of the Unit Titles Act 1975). Nothing turns on whether the minutes were under seal.

[98] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 48 min 35 sec).

[99] Mr Mu's evidence (audio of hearing 28 May 2024 respectively ~4 hr 31 min 34 sec, ~4 hr 32 min 13 sec, ~4 hr 37 min 14 sec, ~4 hr 40 min 7 sec, ~5 hr 31 min 15 sec).

[100] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 1 min 24 sec, and ~3 hr 3 min 2 sec).

[101] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~4 hr 4 min 52 sec).

[102] Mr Harris's evidence (audio of hearing 28 May 2024 ~1 hr 15 min 38 sec).

[103] Mr Gollow's evidence (audio of hearing 28 May 2024 ~4 hr 14 min 55 sec). On its face the reference to "members present" in the letter appears to exclude the letter having also been endorsed on Mr and Mrs Compain's behalf by Mr Carlsund as their agent pursuant to their proxy. This question was not discussed at the hearing, or in submissions. Nothing turns on this factual issue.

[104] Cambridge online dictionary. The Compact Oxford English Dictionary of Current English 3rd Ed Oxford University Press 2005 likewise defines a "commitment" as "a promise to do something".

[105] Compact Oxford English Dictionary of Current English 3rd Ed Oxford University Press 2005.

[106] Mr Mu's evidence (audio of hearing 28 May 2024 ~5 hr 13 min 16 sec ff).

[107] The better view is that such an amendment "alter[ed] the nature" of the original resolution, such that it ought to be incorporated into an amended motion and the subject of a formal notice for consideration at a subsequent meeting with 21 days' notice given (see fn 95). It was the responsibility of Mr Harris (as the Chair) and Mr Carlsund (who "ran the meeting") to facilitate that outcome, but that did not occur because they both believed that the letter of commitment and assurance was of "little substance" and merely a letter of "comfort" with no legal effect. This was a serious error in the conduct of the meeting.

[108] Noting that at common law this is not a legal requirement, albeit that the practice is advantageous, (see fn 94).

[109] Mr Harris's evidence (audio of hearing 28 May 2024 ~1 hr 26 min 22 sec).

[110] Mr Harris's evidence (audio of hearing 28 May 2024 ~1 hr 28 min 23 sec).

[111] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 1 min 55 sec and ~3 hr 45 min 53 sec).

[112] Cambridge online dictionary. The Compact Oxford English Dictionary of Current English 3rd Ed Oxford University Press 2005 likewise defines a "commitment" as "a promise to do something".

[113] Compact Oxford English Dictionary of Current English 3rd Ed Oxford University Press 2005.

[114] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~1 hr 54 min 16 sec, ~2 hr 47 min 38 sec, ~2 hr 27 min 36 sec, ~2 hr 48 min 45 sec).

[115] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~1 hr 54 min 16 sec, ~2 hr 27 min 36 sec).

[116] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 20 min 54 sec and ~2 hr 27 min 36 sec).

[117] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 8 min 30 sec).

[118] Mr Blenkinship's evidence (audio of hearing 28 May 2024 ~2 hr 37 min 1 sec).

[119] Mr Gollow's evidence (audio of hearing 28 May 2024 ~4 hr 16 min 17 sec).

[120] Mr Harris's evidence (audio of hearing 28 May 2024 1 hr 15 min 54 sec and ~1 hr 21 min 26 sec).

[121] HB 191 to 193. The quarterly sum of $7,573.00 multiplied by 3 is $22,719.00. The invoices each constituted a "notice" of the determined "contribution" under s 36(5) of the Unit Titles Act 1975. The invoices also sought three quarterly payments of "Admin Contributions Amended" ($1,315.00) and "Sinking Contributions" ($820.00), which total $6,405.00. KS & RRR Pty Ltd paid that total sum on 28 November 2023.

[122] Body Corporate's submission dated 14 April 2024 at [1b)] (HB 43). The temporal limitation of 18 January 2024 operates to further amend the amended application, which claimed "any additional amounts that may accrue" up to the date of hearing (HB 24 and 26) - which subsequently occurred on 28 May 2024. So appreciated, the claim does not exceed the Tribunal's jurisdiction under ss 5 and 6 of the Small Claims Act 2016 which is limited to $25,000.00.

[123] Mr Lay, representing Lay & Sons Organisation Pty Ltd (a unit owner), did not sign the letter - since he attended the meeting by telephone. However Mr Gollow recalled that the letter was read out to Mr Lay, and the letter records that it was supported by the "members present" which included Mr Lay (Mr Gollow's evidence, audio of hearing 28 May 2024 ~4 hr 14 min 55 sec).

[124] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 43 min 13 sec ff).

[125] Mr Mu's evidence (audio of hearing 28 May 2024 ~4 hr 43 min 13 sec ff).

[127] HB 236. This email was annexed to Mr Withnall's written submission dated 18 April 2024 (on behalf of KS & RRR Pty Ltd), but inadvertently the attached letter of commitment and assurance was not included in the annexure. However it is clear from the nomenclature recorded in the email (ie "20230316_BC_Commitment_to_Unit_3_Signed-3.pdf") that the attachment was this letter. Mr Withnall confirmed this was the case (audio of hearing 19 April 2024 ~52 min 15 sec).

[128] The expression "further to" is ordinarily "used in business letters to refer to an earlier letter, conversation, meeting, etc" (Cambridge online dictionary). Here the expression conveys, incorrectly, that the letter was a separate event to the meeting, and thus that it is separate from resolution 2 and not relevant to it.

[129] Mr Carlsund's evidence (audio of hearing 28 May 2024 ~3 hr 54 min 55 sec). Mr Blenkinship likewise agreed, with hindsight, that the letter should have been included in the minutes (audio of hearing 28 May 2024 ~2 hr 45 min 6 sec). Mr Harris said that he could not comment about whether this was legally required (audio of hearing 28 May 2024 ~1 hr 50 min 1 sec).

[130] KS & RRR Pty Ltd's application to join one of the tenants dated 28 December 2023; it was not pursued (HB 16 ff).

[131] Email dated 26 July 2023 from Mr Withnall to Mr Carlsund (HB 239 ff), which refers to Mr Withnall's meeting with one of the joint tenants about payment of the increased cost and planning approval in May 2023 (HB 240). In which respect cl 23.3 provided that, where the lease said that "approval or consent must be obtained", then KS & RRR Pty Ltd "must not unreasonably withhold its consent or approval unless this Lease expressly says otherwise".

[132] Email dated 26 July 2023 from Mr Withnall to Mr Carlsund, which refers to Mr Withnall's meeting with one of the joint tenants about payment of the increased cost and planning approval in May 2023 (HB 240).

[133] Mr Withnall's written submission dated 18 April 2024 (on behalf of KS & RRR Pty Ltd) at [5] (HB 234).

[135] Body Corporate's submission dated 14 April 2024 at [1b)] (HB 43). The temporal limitation of 18 January 2024 operates to further amend the amended application, which claimed "any additional amounts that may accrue" up to the date of hearing (HB 24 and 26) - which subsequently occurred on 28 May 2024. So appreciated, the claim does not exceed the Tribunal's jurisdiction under ss 5 and 6 of the Small Claims Act 2016 which is limited to $25,000.00.

[136] HB 191 to 193. The quarterly sum of $7,573.00 multiplied by 3 is $22,719.00. The invoices each constituted a "notice" of the determined "contribution" under s 36(5) of the Unit Titles Act 1975. The invoices also sought three quarterly payments of "Admin Contributions Amended" ($1,315.00) and "Sinking Contributions" ($820.00), which total $6,405.00. KS & RRR Pty Ltd paid that total sum on 28 November 2023.

[137] Mr Withnall's advice to the Tribunal (audio of hearing 19 April 2024 ~52 min 15 sec).

[138] Mr Withnall referred to the letter as "apparently" actioned "immediately after" the meeting (audio of hearing 19 April 2024 ~12 min 4 sec). In that respect, as discussed above, as Mr Carlsund's characterisation of the letter as being "further to the meeting" accords with that timing. It was not until the oral evidence of Mr Carlsund (and other Body Corporate witnesses) on 28 May 2024 that it was appreciated to be common ground that the letter was drafted and signed during the meeting.

[139] Advice to the Tribunal from Mr Cozens and Ms Lucy Zhau's (solicitor) (audio of hearing 19 April 2024 ~52 min 21 sec, ~1 hr 8 min 19 sec). Although it was not then in evidence, on 19 April 2024 Mr Cozens read out most of the text of the second and final sentence of the letter of commitment and assurance dated 16 March 2023. Specifically Mr Cozens read the following words: "That the Body Corporate will meet for the purpose of amending the budget to reallocate the difference in the cost of the insurance premium to the Body Corporate ...", but excluding the final words "... should the owner of Unit 3 request the meeting" (audio of hearing 19 April 2024 ~53 min 40 sec).

[141] Body Corporate's submission dated 20 June 2024.

[142] Body Corporate's submission dated 20 June 2024.

[143] Section 80(2) of the Unit Titles Act 1975 mandates that a body corporate must be insured regarding the strata complex, unless it unanimously resolves otherwise (s 80(3)).

[144] The remaining resolution considered (and unanimously carried) at the meeting, no 4, authorised Mr Harris to keep a dog at his unit. Resolution 4 is not subject to this proceeding, and I express no view about it or its validity.

[145] That is, in the circumstances it would not be "appropriate" under s 106(4) of the Unit Titles Act 1975 that the Tribunal instead order in this proceeding that KS & RRR Pty Ltd is liable to pay the lesser sum of $3,250.38, by reference to the 'default' position about member contributions in s 36(3). Rather, the proper course is that the Body Corporate further consider the question of insurance contributions under s 36. If, in future, a member does not pay a contribution determined by a valid resolution and determination under that provision, the Body Corporate may then recover that amount as a "debt" under s 36(6).

[146] See The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158 at [9], where the NSW Consumer Trader and Tenancy Tribunal likewise considered, when reviewing an adjudicator's decision, that "he had no authority to "repeal" the by-law ab initio and he had no authority to make the order he purported to make under s157(3) for the payment of compensation to the lot owners" - because the by-law was void.

[148] See Dos Santos v Gallwey (No 2) [2015] NTCAT 9 President Bruxner at [34].

[149] KS & RRR Pty Ltd has leave, should it consider it is entitled to costs under the statutory scheme (which is summarised above), to apply to the Tribunal for such costs within 14 days of the date of this decision.