Waddington v The Owners �e" Strata Plan No 30254 [2025] NSWCATCD 34;

1. Minutes of Strata Committee Meetings record that Mr Haege put forward various motions and, presumably, voted in those meetings. In the Minutes of a meeting on 18 August 2020 Mr Haege is recorded as the Chairman.
2. The applicant claims:

(1) Mr Adzersen, Ms Reynolds and the Owners Corporation were misled and deceived by Mr Haege in relation to his ownership;

(2) As a result the voting at the AGMs of the last 15 years is 'invalidated';

(3) Despite the 'deception', Mr Adzersen and Ms Reynolds gave ongoing support to Mr Haege;

(4) The affidavits of Mr Adzersen and Ms Reynolds 'cast doubt about the credibility and suitability of their membership of the strata committee'.

1. The respondents' submissions provide an extract of the sound recording of the hearing on 8 July 2024. It records that Mr Haege gave evidence that:

I always acted as my daughter, who lives in New York, always acted as her proxy and that's as I understood it. I did have an ownership in the unit after my wife's death in 2005 when she left everything to the three children that we both had and there were changes made as someone pointed out. In the end Georgia ended up with total ownership and I thought the solicitor would have given the notices as he does for water and everything else, anyway somehow it was overlooked.

This oversight was never intentional and was an unfortunate omission rather than a deliberate act of deceit.

1. The affidavit evidence of Mr Adzersen and Ms Reynolds is that 'until recently' Mr Haege:

... has represented himself ... for Unit 12 of SP 30254 by way of being part owner.

1. Based on this affidavit evidence and the Minutes of the AGMs from 2016, I am persuaded that Mr Haege held himself out to be an owner of unit 12 in the strata scheme, when he was not.
2. I do not accept that he 'always' acted as his daughter's proxy. The Minutes record that at several AGMS he was present in his own right as the apparent owner of unit 12 (or, in an apparent typographical error, unit 11).
3. There is no requirement under the SSMA for a person who divests his interest in a lot to notify the Owners.
4. Mr Hague's misrepresentation of his ownership is significant because:

(1) Only a lot owner is entitled to vote at a general meeting of the owners corporation (s 23(1)); and

(2) In at least 3 AGMs Mr Haege was elected to the strata committee. Pursuant to s 31(d), an individual who is not an owner of a lot is only eligible to be elected to the strata committee if he or she is nominated by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee. Such an individual may not self-nominate.

(3) Therefore, in 2019 and 2020 Mr Haege was elected to the committee without being eligible. The Minutes do not record who nominated Mr Haege in 2018. However, by failing to disclose that he was not a lot owner, the lot owners present at the meeting could not properly consider whether Mr Haege was eligible for election to the committee.

1. I am therefore satisfied that Mr Haege failed to comply with the requirements of the SSMA this Act by voting at general meetings when he was not eligible and by self-nominating for appointment on the Strata Committee.
2. However, I am not persuaded on the balance of probabilities that Mr Haege engaged in a deliberate deception. It is just as likely that the irregularities were the result of his negligence (and/or that of his daughter), albeit over a lengthy period.
3. In the absence of persuasive evidence that Mr Haege engaged in intentional falsehood, I am not persuaded that his conduct is of sufficient magnitude to justify the Tribunal exercising its discretion in favour of removing him from the strata committee. The lot owners, aware of Mr Haege's conduct, exercised their democratic right and re-elected him to the Strata Committee at the 2024 AGM, presumably because they assessed he had been making a valuable contribution to the management of the scheme.
4. I am not satisfied that the decision by Mr Adzersen and Ms Reynolds to support Mr Haege's appointment to the committee in 2024 would justify their removal from the committee. I accept that they genuinely believe Mr Haege has made a valuable contribution to the strata scheme over the years, notwithstanding his failure to disclose he was not an owner, and that this is the reason they support his presence on the Committee.
5. Nor am I persuaded that Mr Adzersen engaged in any sort of inappropriate conduct by nominating Mr Haege for the strata committee at the 2024 AGM and then 'illegally self nominating'.

Ground 2 - the special resolution regarding laundry renovations

1. The applicant contends that Mr Haege organised the renovation of the common property laundry without the required special resolution, and that a motion to renovate the laundry was defeated at the 2020 AGM.
2. The Minutes of the 2020 AGM on 15 July 2020 record that the following motion was defeated:

That the Owners Corporation SPECIALLY RESOLVES pursuant to sections 108 and 143 of the Strata Schemes Management Act 2015 ("Act") to engage Mark Fitzgerald to carry our laundry renovations and replace the coin-operated machine.

108 Changes to common property

(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

1. There is no dispute that work was conducted in the laundry in around August 2020.
2. If the works conducted satisfied the description in s 106 of the SSMA as repair and maintenance, they are not subject to any requirement of a special resolution: Stolfa v Hempton [2010] NSWCA 218 at [9]- [10].
3. The respondents rely on an invoice from Mark Fitzgerald, plumber, dated 2 August 2020. It states:

Cut out two tubs rusted at base. Set up new waste pipes for drainage from washing machines on right and rear walls. Install gnu taps for washing machines. Remove all rubbish. Work approved by Alex.

1. The invoice claims $1,430.00 for the work.
2. The invoice supports the respondents' submissions that the work to the laundry was not a 'renovation', but renewal and replacement of aged facilities and fixtures, and thus repairs and maintenance within the meaning of s 106. Any change was merely incidental to that renewal and replacement (see Owners SP 50276 v Thoo [2013] NSWCA 270 at [4] to [7]).
3. Similarly, some of the old washing machines were replaced by new machines, and at no cost to the Owners.
4. The applicant bears the onus of proof. I am not satisfied on the evidence before the Tribunal that the work in the laundry amounted to a change to common property within the meaning of s 108. Therefore a special resolution was not required.
5. The laundry work provides no basis for the removal of the respondents from the strata committee.
6. Further, even if I accept the applicant's evidence regarding other work to, or use of common property which benefits Mr Adzerson's lot, such work/ access was minimal and I am not persuaded it justifies the removal of any of the members from the Strata Committee.

Ground 3 - the appointment of the current strata manager

1. It is not disputed that Gordon Robinson Real Estate was appointed as the strata manager in 2023, but without a resolution at a general meeting of the owners corporation.
2. The appointment was thus in breach of s 49(2) of the SSMA.
3. The respondents submit that the appointment was urgent due to the unexpected resignation of the then strata manager, after a disagreement regarding remediation of a suspected gas leak and non-compliant pipework.
4. The resignation email of the former strata manager dated 17 April 2023 indicates that the AGM scheduled for 19 April 2024 was postponed at the request of the Strata Committee 'until a new Strata Management company is appointed.'
5. Gordon Robinson Real Estate was appointed upon the recommendation of Mr Haege.
6. An email from the applicant to Gordon Robinson Real Estate dated 24 April 2023 pointed out the irregularities of the appointment and that 'Alex Haege acted without proper procedure of authority', but said 'I am happy to support your appointment by way of recommendation ... Trusting a long and happy relationship.'
7. The Minutes of the AGM held on 15 May 2023 record that subsequently the appointment was confirmed.
8. In these circumstances, I am not persuaded that the breach of s 49(2) of the SSMA is of sufficient magnitude to justify the Tribunal exercising its discretion in favour of removing any of strata committee member from office:

1. I am not persuaded, as the applicant submitted, that the respondents have engaged in a pattern of behaviour whereby they behave as if the Strata Committee is effectively the Owners Corporation itself.
2. I am not persuaded that any respondent engaged in serious misconduct while a member of the Strata Committee, nor failed to exercise due care and diligence of such a magnitude that their removal is justified.
3. It follows that the application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.