888 Developments Pty Ltd v Owners Corporation 1 Plan No. PS415494H
[2025] VSC 646
•17 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 06997
BETWEEN:
| 888 DEVELOPMENTS PTY LTD (ACN 088 660 208) | Plaintiff |
| v | |
| OWNERS CORPORATION 1 PLAN NO. PS415494H & ORS (according to the schedule) | Defendants |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2025 |
DATE OF JUDGMENT: | 17 October 2025 |
CASE MAY BE CITED AS: | 888 Developments Pty Ltd v Owners Corporation 1 Plan No. PS415494H |
MEDIUM NEUTRAL CITATION: | [2025] VSC 646 |
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ADMINISTRATIVE LAW – Appeal from VCAT pursuant to s 148 of Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Plaintiff seeking to alter plan of subdivision – Valid ballot conducted in accordance with Owners Corporation Act 2006 (Vic) – Several members failed to return ballot – Application to VCAT under s 34D(3)(b) of Subdivision Act 1988 (Vic) to provide consent on behalf of members due to impracticability of obtaining vote – VCAT refused application on basis that insufficient notice given to members, and need for further information campaign – Whether VCAT erred – HELD: Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr McKay | Alt Legal |
| For the Defendants | -- | -- |
TABLE OF CONTENTS
Introduction
Background
Legislation and Principles
Leave to Appeal
Appeal Ground One – Error in Statutory Construction
Applicant’s Submissions
Principles
Consideration
Appeal Ground Two – Inadequate Reasons
Submissions
Principles
Consideration
Appeal Ground Three – Irrelevant Considerations
Principles
Consideration
Appeal Ground Four - Serious Illogicality
Principles
Consideration
Relief sought
HIS HONOUR:
Introduction
This is an application for leave to appeal from Orders made by VCAT member, Dr R Leshinsky (‘VCAT Member’) on 25 November 2024 in the Victorian Civil and Administrative Tribunal (‘VCAT’), proceeding number OC1148/2022.
The applicant relies on:
(a)affidavits of Ajai Lyndon Thapliyal sworn on 20 December 2024 and 21 May 2025;
(b)affidavits of service for the 18 respondents; and
(c)the applicant’s submissions.
Background
The applicant is the registered proprietor of Lot 1, on Plan of subdivision PS415494H (‘Plan’) being Lot 1 at 142-146 Andersons Creek Road, Doncaster East, Victoria. The Plan consists of 12 lots and common property. The first respondent is the registered proprietor of common property 1 on the Plan and the manager and administrator of the common property 1 and common property 2 on the Plan. The second to twelfth respondents are the registered proprietors of their respective Lots on the plan. They have each been served with the Notice of Appeal but did not appear at the hearing.
The applicant is a property developer who wishes to develop Lot 1 into a 20-lot subdivision consisting of 20 townhouse dwellings with double garages. In order to do so, it is necessary to excise Lot 1 from the plan of subdivision. The default position pursuant to s 32 of the Subdivision Act 1988 (Vic) (‘Subdivision Act’) is that such excision may occur with a unanimous resolution of all members of the owners corporation.
The Subdivision Act and Owners Corporation Act 2006 (Vic) (‘Owners Corporation Act’) set out the requirements for notice and the conduct of ballots in relation to proposed alterations to a plan of subdivision. The applicant served notices in relation to the proposed amendment on all members in accordance with the statutory requirements. Subsequently on 28 April 2022, the ballot was conducted. VCAT was satisfied that the ballot was ‘held in accordance with the requirements of the Owners Corporations Act 2006 (Vic).’[1] I note that, as per s 85(1) of the Owners Corporations Act, a precondition for a valid ballot is that notice in writing of the ballot must be given to each lot owner. Two members, the applicant and first respondent, consented to the proposal, but none of the other 12 members voted, with the result that a unanimous resolution was not obtained.
[1]888 Developments P/L and Owners Corporation 1 Plan No. PS415494H (2024) OC1148/2022 (‘VCAT Findings’).
The applicant applied to VCAT pursuant to s 34D of the Subdivision Act which empowers VCAT to authorise a variation to a plan in certain circumstances where unanimous resolution is not obtained. The applicant relied on s 34D(3)(b) which empowers VCAT to make an order consenting on behalf of members where ‘for any other reason it is impracticable to obtain the vote of the member or members.’[2]
[2]Subdivision Act 1988 (Vic) 34D(3)(b).
On 25 November 2024, the VCAT Member refused the application on the basis that she was not satisfied that it was ‘impracticable’ to obtain the vote of members. The Member relevantly held:
G … Whilst I accept efforts were made to contact lot owners, I find the extent and degree to which this was done insufficient for such a small subdivision. I would have expected there to be a more in-depth campaign, and information about the proposed amendment, as well as more current information about the contact with, and whereabouts of the owners, than was put before the Tribunal.
H. That members do not attend the annual general meeting (‘AGM’), or even a series of AGMs is insufficient evidence that it is impractical to obtain votes from members. There are many reasons for why members do not attend AGMs.
I. Lot 1 is a substantial part of the subdivision and given that it is a small subdivision of 12 lots in total, more strategies must be put in place to inform owners about the opportunity to vote in favour or against the proposal. I see the need for increased efforts and investigation to contact members, to meet the standard of impractical to obtain the vote of the member or members.[3]
[3]VCAT Findings (n 1) 447-8 (emphasis in original).
The power of VCAT to provide consent on behalf of members is anchored in the impracticability of obtaining the members’ vote. The central question for VCAT to determine was therefore whether it was ‘impracticable to obtain the vote.’ At that stage, the applicant had apparently followed the statutory steps for conducting a valid ballot, yet various owners had not responded. That could be because:
(a)they did not know of the ballot, even though they were ‘served’ pursuant to the statutory process; or
(b)they knew of the ballot, but were unwilling or unable, to return a valid ballot.
The VCAT Member’s reasons are based on findings that the members did not vote because:
(a)the applicant did not give adequate notice of the ballot to the members; and
(b)the applicant did not provide sufficient information concerning the ballot to the members.
Because the impracticability in question concerns obtaining member votes, the reasons are necessarily based on the conclusion that, if some other form of notice was given and/or if more information was provided to the members, then their votes would have been obtained.
The applicant seeks leave to appeal from that decision under r 4.03 of the Supreme Court (Miscellaneous Civil Procedure) Rules 2018 (Vic) and s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), essentially on the grounds that:
(a)Ground one: The VCAT Member erred in her construction of s 34D(3)(b) of the Subdivision Act in requiring some unarticulated campaign of further notice and information to elicit votes or provide information beyond compliance with the statutory requirements for a valid ballot;
(b)Ground two: The VCAT Member failed to give adequate reasons explaining why a further campaign was required;
(c)Ground three: The VCAT Member took into account an irrelevant consideration as she found that the applicant’s failure to conduct a further campaign to elicit votes rendered the applicant’s efforts insufficient where such a requirement lay outside the bounds of the relevant legislation; and
(d)Ground four: The decision was unreasonable, or seriously illogical, or not open on the evidence.
Legislation and Principles
Leave to Appeal
Section 148(1) of the VCAT Act provides:
A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding –
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
Justice Croft in Paramount Investments Group Pty Ltd v Club Fogolar Furlan Melbourne recently summarised the principles applicable to an application for leave to appeal from VCAT as follows:
(a)an appeal lies on a question of law and requires leave. It is not the role of the Court to substitute its own views of the evidence or entertain further debate as to the merits of the decision;
(b)the policy underlying these provisions is that ‘VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal’[4];
(c)the Court ‘is not entitled to enter into the fact‑finding exercise which the legislature has deliberately entrusted to a specialist tribunal’[5]; and
(d)the requirement of leave is a safeguard to ensure appeals are only on questions of law. The applicant bears the burden of persuading the Court to exercise its discretion to grant leave. That requires the applicant to prove it has a real prospect of success.[6]
Appeal Ground One – Error in Statutory Construction
[4]Paramount Investments Group Pty Ltd v Club Fogolar Furlan Melbourne [2025] VSC 90 [8] (‘Paramount v Club Fogolar’), quoting Commissioner of State Revenue v Frost (2011) 83 ATR 832, 834 [5], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335–6; Myers v Medical Practitioners’ Board (Vic) (2007) 18 VR 48, 55–6 [28].
[5]Paramount v Club Fogolar (n 4) [8], citing Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21, 26 [15]; Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1.
[6]Paramount v Club Fogolar (n 4) [8]-[16].
Applicant’s Submissions
The applicant submits that:
(a)the VCAT Member misconstrued s 34D(3)(b) of the Subdivision Act by holding that, in order to ‘obtain the vote of the…members’ in accordance with that section, an applicant was required to do more than seek to obtain their vote by the means laid down in Part 4 of the Owners Corporations Act, and was required to conduct a ‘more in-depth campaign’, the nature and extent of which was not specified in the member’s reasons; and
(b)the VCAT Member ought to have construed s 34D(3)(b) of the Subdivision Act as being satisfied where: (a) a lawfully convened ballot or meeting had occurred at which the proposal the subject of the application was put to the relevant members; and (b) the relevant members had refused, declined, or failed to proffer a vote on the proposal, either by indicating their decision during the meeting or by not returning a completed ballot form.
Principles
The principles relevant to questions of statutory construction were summarised by the Victorian Court of Appeal in Vicinity Funds Re Ltd v Commissioner of State Revenue as follows:
The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose. Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act. Consideration of purpose is further reinforced by s 35(a) of the ILA, which provides as follows:
A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.
It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity. However, legislative history and extrinsic materials cannot displace the meaning of the statutory text. It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[7]
[7]Vicinity Funds v Commissioner of State Revenue [2022] VSCA 176, [69]-[70].
Consideration
In order to effect alterations to a plan of subdivision under s 32 of the Subdivision Act, a unanimous resolution of members is required. Once a unanimous resolution is obtained, the owners corporation may effect changes to the plan of subdivision.
Resolutions can be obtained by vote, ballot or by application to VCAT under s 34D of the Subdivision Act. This matter proceeded at first instance by way of ballot. The provisions prescribing the way in which a ballot must be conducted are set out in Part 4, Division 5 of the Owners Corporations Act. The purpose of that Act relevantly includes ‘(a) to provide for the management, powers and functions of owners corporations; and (b) to provide for appropriate mechanisms for the resolution of disputes relating to owners corporations...’[8] The relevant provisions are ss 84 – 86 which provide as follows:
[8]Owners Corporations Act 2006 (Vic) s 1.
84 How can a ballot be conducted?
A ballot may be conducted by post or by telephone, facsimile, the Internet or other electronic communication.
85 Notice of ballot
(1)The person arranging a ballot must give notice in writing of the ballot to each lot owner at least 14 days before the closing date for the ballot.
Note: The Electronic Transactions (Victoria) Act 2000 enables this notice to be given electronically.
(2)The notice must include the following—
(a) the closing date for the ballot, being—
(i) 14 days after the date of the notice; or
(ii)if the matter that is the subject of the ballot is urgent, less than 14 days after the date of the notice; and
(b)the ballot document containing the motion, including the text of any resolution to be voted on in the ballot; and
(c)a statement that the lot owner has the right to appoint a proxy.
86 Resolution by ballot
…
(2)A resolution of the owners corporation by ballot is made as follows—
(a)matters requiring an ordinary resolution must be passed by a majority of the votes returned by the closing date but the number of votes returned must be not less than the number needed for a quorum in accordance with section 77;
(b)other matters must be passed by a special resolution or unanimous resolution, as appropriate.
The VCAT Member expressly stated that she was satisfied that the ballot was validly conducted. That can only be on the basis that the members each had notice of the proposed resolution because that is a pre-requisite of a valid ballot. Despite such notice, only the applicant and the owners corporation (the first respondent) cast ballots. There is no evidence as to why none of the other members cast ballots. It may be that they were not interested in being involved, or there may be other reasons. Whatever the reason, because they did not cast their ballots, a unanimous resolution was not obtained so the applicant applied to VCAT under s 34D(1)(b) of the Subdivision Act for an order consenting on behalf of the members to the proposed resolution.
The purposes of the Subdivision Act are set out in s 1 as follows:
(a)set out the procedure for the subdivision and consolidation of land, including buildings and airspace, and for the creation, variation or removal of easements or restrictions; and
(b)regulate the management of and dealings with common property and the constitution and operation of owners corporations.
Section 34D(3) of the Subdivision Act imposes constraints on the circumstances in which VCAT may consent on behalf of members who did not cast a ballot or provide consent. Pursuant to s 34D(3) of the Subdivision Act, VCAT may not make an order unless it is satisfied that:
(a)the member or group of members cannot vote because the member is or the members are dead, out of Victoria, or cannot be found; or
(b)for any other reason it is impracticable to obtain the vote of the member or members; or
(c)the member has or the group of members have refused consent to the proposed action and—
(i)the member owns or the group of members own more than half of the total lot entitlement; and
(ii)all other members of the owners corporation consent to the proposed action; and
(iii)the purpose for which the action is to be taken is likely to bring economic or social benefits to the subdivision as a whole greater than any economic or social disadvantages to the member or the group of members who did not consent to the action.[9]
[9]Subdivision Act (n 2) s 34D(3)(c), s 91(2).
In this matter, the applicant relies on s 34D(3)(b). The jurisdiction of VCAT is invoked under s 34D(3)(b) where ‘for any other reason it is impracticable’ to obtain the relevant votes. Accordingly, this section calls for consideration as to whether it is ‘impracticable’ to obtain the relevant votes for a reason other than those in s 34D(3)(a) being reasons other than death, absence from Victoria or inability to be found. The party seeking relief from VCAT bears the burden of satisfying VCAT that it is impracticable.
I was not taken to any authority in which the meaning of the term ‘impracticable’ in the context of s 34D(3)(b) was considered. The Macquarie Dictionary defines it as meaning ‘not practicable; that cannot be put into practice with the available means.’[10] Insofar as this definition suggests that ‘impracticable’ is synonymous with ‘impossible’, I do not agree that is the meaning to be attributed to it in s 34D(3)(b) of the Subdivision Act which is directed towards practical hurdles in obtaining votes, rather than theoretical hurdles.[11]
[10]Macquarie Dictionary (6th ed, 2013) ‘impracticable’.
[11]Cf SK Developments (Aust) Pty Ltd v Vansan Construction Pty Ltd [2025] VSC 402, [32]; Liosatos v Liosatos [2025] NSWSC 44, [118].
The meaning of ‘impracticable’ has been considered in other contexts. In the context of substituted service, orders may be made where ‘for any reason it is impracticable to serve’ as otherwise required.[12] Courts have interpreted that to mean ‘practical impossibility’, and have further held that the standard is one of reasonableness, so that the question is whether the plaintiff, using reasonable effort, is unable to serve the document.[13]
[12]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.10(1).
[13]Austin v Dobbs [2018] VSC 755, [27]- [33], [38], citing Foxe v Brown (1984) 58 ALR 542 , 547.
In Liosatos v Liosatos, Meek J discussed the meaning[14] of ‘impracticable’ in the following terms:
‘Impracticable’ means ‘not practicable; that cannot be put into practice with the available means’.
In Ciric v Ciric, Hallen J stated in relation to ‘impracticable’:
‘Impracticable’ is not defined in the Act. Something is said to be ‘impracticable’ when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word ‘impossible’. It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances.[15]
[14]In Liosatos v Liosatos, the Court discussed the meaning of impracticable in the context of the Succession Act 2006 (NSW) and the requirement that notice be given to interested persons unless ‘unnecessary, unreasonable or impracticable’ to do so.
[15]Liosatos v Liosatos (n 11) [117]-[118] (citations omitted), citing Ciric v Ciric [2015] NSWSC 313 [40], quoting Thornley v Heffernan (Unreported, Supreme Court of New South Wales, McClelland J, 12 September 1995); Hamilton v Moir [2013] NSWSC 1200, [35].
Justice Meek later indicated that it was likely that the expression ‘unreasonable or impracticable’:
… was intended to give the Court a type of decision-making flexibility which the Court had in relation to substituted service of court process in civil proceedings generally, although directed to a different end.[16]
[16]Liosatos v Liosatos (n 11) [122].
Justice Meek further observed that a survey of the authorities reveals broad themes including that:
… the ‘impracticable’ term is generally relied upon where there is some attempt at location of a proposed recipient and attempt at service but it has been unsuccessful.[17]
[17]Liosatos v Liosatos (n 11) [138].
Whether something is impracticable is a question of fact. It requires consideration of the circumstances, and, in the present case, a conclusion to be drawn as to the inconvenience or difficulty of obtaining a vote. It will always depend on the facts, and in every case it is necessary to consider the requirements of the rule by reference to the individual circumstances in question.[18]
[18]Austin v Dobbs (n 13) [28]–[33]; Sanc (Australia) Pty Ltd v Dixon [2020] VSC 872, [19(d)].
In this case, the applicant submits that, as a matter of construction, the VCAT Member erred by requiring the applicant to take steps beyond the statutorily mandated steps to conduct a valid ballot. However, there may be circumstances where a valid ballot has been conducted but it nevertheless may not be impracticable to obtain votes. For example, if a valid notice for a ballot was sent to members, and a member communicated that they were going overseas for a month to Patagonia and would not have the opportunity to properly consider the ballot or participate, a tribunal may not be satisfied that it was ‘impractical’ to obtain that vote on the scheduled day because the ballot could have been delayed for a short time. The situation may be different if the matter was urgent. It may be different again if the member was going away and would be out of contact for several months. These examples demonstrate that what is ‘impracticable’ is a question of fact that depends on the circumstances, and will not necessarily be determined by whether the ballot has been validly conducted. That is broadly consistent with the approach of the VCAT Member who, in considering what ‘impractical to obtain’ means, proceeded on the basis that ‘each case before the Tribunal will be taken on its own merits.’[19]
[19]VCAT Findings (n 1) 447.
Section 34D(3)(b) of the Subdivision Act could have been framed in terms that ‘if (for other reasons than identified in (a)) a valid ballot has been conducted but members abstained from voting … then VCAT may provide that consent.’ But the legislature did not frame the jurisdictional hurdle as requiring satisfaction as to a valid ballot and abstention, but rather, as requiring satisfaction that ‘it is impracticable to obtain the vote.’
In those circumstances, I am not satisfied that the VCAT Member misconstrued s 34D(3)(b) insofar as she considered it was open to her to take into account matters beyond the fact of a valid ballot. Expressed another way, in order to establish ‘impracticability’ it is not necessarily sufficient to establish that a valid ballot was conducted with abstentions. The VCAT Member was required to consider whether it was impracticable to obtain the relevant votes, and not merely whether a valid ballot had been conducted with abstentions, although that may depend on the circumstances. That is a factual inquiry, and in undertaking it, the VCAT Member was entitled to take into account matters beyond formal compliance with ballot procedures.
However, as discussed below, a tribunal is required to:
(a)disclose its chain of reasoning in coming to the conclusion;
(b)take into account only relevant considerations; and
(c)provide logical and rational reasons having regard to the scope and purpose of the relevant statutory provision.
Appeal Ground Two – Inadequate Reasons
Submissions
The applicant submits that:
(a)the VCAT Member did not explain or disclose her pathway of reasoning in finding that s 34D(3)(b) had not been met despite the relevant members refusing, declining, or failing to return a ballot form on the relevant proposal following a lawfully convened ballot;
(b)the VCAT Member did not explain or disclose her pathway of reasoning respecting the additional steps required to attempt to obtain the vote of the relevant members outside the processes mandated under Part 4 the Owners CorporationsAct; and
(c)the VCAT Member did not explain the scope, nature or content of the ‘in-depth campaign’, the ‘strategies’ or the ‘increased efforts’ that she found were required to satisfy s 34D(3)(b) of the Subdivision Act in the circumstances of the case, or why those matters were required under the legislation.
Principles
The principles applicable to whether the decision-maker provided adequate reasons are as follows:
(a)whether the decision-maker outlined his or her actual path of reasoning;
(b)the Court must be able to determine, through examination of the reasons, whether any error of law occurred; and
(c)the decision-maker is not required to explain any conclusion that he or she did not reach.[20]
[20]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [26]-[29], citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
Consideration
The applicant is in a predicament. It has notified each of the members of the proposed amendment to the plan of subdivision and has conducted a valid ballot. Most members did not submit any response to the ballot. There is no direct evidence as to why they did not do so. Section 34D of the Subdivision Act is the only procedure available to the applicant to obtain the relief it seeks, but notwithstanding the above compliance, VCAT refused relief on the grounds that it is not satisfied that it is impracticable to obtain votes. The applicant fairly asks, ‘what am I to do?’
The reasons appear to disclose two matters relevant to the decision to refuse relief: the degree of contact with members and the content of the information provided. Because the decision to be made concerns proof of ‘impracticability’, the VCAT Member was required to disclose reasons explaining how the degree of contact and content of information inform the decision made as to practicability.
In relation to the degree of contact with members, the reasons are unclear. As discussed above, the VCAT Member expressly stated that she was satisfied that the ballot was validly conducted. That can only be on the basis that the members each had ‘notice’ of the proposed resolution, because that is a pre-requisite to conduct a valid ballot by operation of s 85(1) of the Owners Corporations Act which provides:
Notice of ballot
(1)The person arranging a ballot must give notice in writing of the ballot to each lot owner at least 14 days before the closing date for the ballot.
Having regard to the finding that the ballot was validly conducted, it must be that each of the members had notice of the proposed ballot. Notwithstanding that fact, the VCAT Member concluded that:
(a)the ‘extent and degree to which efforts were made to contact owners’ was ‘insufficient for such a small subdivision’;
(b)she would have expected there to be ‘more current information about the contact with, and whereabouts of the owner, than was put before the tribunal’;
(c)‘more strategies must be put in place to inform owners about the opportunity to vote’; and
(d)she saw ‘the need for increased efforts and investigation to contact members.’[21]
[21]VCAT Findings (n 1) 447-8.
The VCAT Member failed to disclose her path of reasoning in relation to these findings. The reasons do not disclose why the statutory method of service was ‘insufficient’, or what ‘sufficiency’ in that regard means. The reasons do not contain a finding that any member did not receive notice of the ballot. Neither is there anything in the reasons to explain the basis for the conclusion, if it was reached, that members did not vote because they did not receive notice of the ballot, as opposed to abstaining because they were unwilling to vote.
Having proceeded on the basis that there was valid service, the reasons also do not disclose why information about ‘contact with, or whereabouts of the owners’ was relevant. Is it suggested that they did not receive the ballot information and as such, did not have notice of the ballot? Or is it that the ballots were not returned because the members were elsewhere and therefore unable, or perhaps unwilling, to return them?
The reasons also do not disclose why ‘more strategies must be put in place to inform owners about the opportunity to vote’ or what that means. This conclusion seems to be predicated on the proposition that the owners did not vote because they did not have sufficient information about the opportunity to vote. But the chain of reasoning in this regard is missing. If the VCAT Member proceeded on the basis that the owners did not actually know of the ballot (and thereby, how to vote) despite compliance (that is, ‘notice’ pursuant to s 85(1) of the Owners Corporations Act) in accordance with the statutory method, then the reasons should disclose the basis upon which that conclusion is reached.
Having found that the statutory notice provisions were complied with, but that such notice was insufficient for the purposes of establishing impracticability of obtaining votes, VCAT was required to provide reasons as to why notice under the statutory regime in the Owners Corporations Act was insufficient to inform the members of the ballot. If the notice given in accordance with the Owners Corporations Act provisions is insufficient, but other methods would be sufficient, then the reasons should disclose what they are and why that is so.
The VCAT Member also did not explain why there is a need for ‘increased efforts and investigation to contact members.’ If the members have been served, then the requirements of increased efforts seems perverse. If they have not been served, then there has not been a valid ballot. If the conclusion has been reached that the owners did not vote because they did not receive notice, then the chain of reasoning for reaching that conclusion must be disclosed. As the VCAT Member did not do so, she has not provided adequate reasons.
Appeal Ground Three – Irrelevant Considerations
The applicant submits that:
(a)the Subdivision Act and Owners Corporations Act lay down an integrated system for the regulation of owners corporations in Victoria, and those statutes ought to be construed cohesively;
(b)section 34D(3)(b) of the Subdivision Act is concerned with the question of whether it is ‘impracticable to obtain the vote’ of the relevant members;
(c)the statutory provisions for the conduct of votes under the Owners CorporationsAct are found in Part 4 of that Act;
(d)the applicant followed the procedures laid down in Part 4 of the Owners Corporations Act by convening a ballot. The relevant members had refused, declined or failed to return a ballot form;
(e)that process having been utilised, and it having failed to yield a vote from the relevant members, rendered it impracticable to obtain the vote of the relevant members, as they had declined to participate in the lawful voting procedures mandated under the Owners Corporations Act; and
(f)that being the case, it was irrelevant that the applicant had failed to conduct some further information campaign, or some further process designed to elicit a vote from the relevant members, where: (i) the process for taking a vote had been followed, and exhausted; and (ii) neither the Subdivision Act nor the Owners Corporations Act mandated any further campaign or process to be conducted to obtain the vote of the relevant members once the lawfully prescribed voting procedures had been exhausted.
Principles
The applicant relies on Riordan J’s summary in R v Independent Broad-Based Anti-Corruption Commissioner (‘R v IBAC’) of the principles applicable when reviewing a decision-maker’s purported error caused by taking into account irrelevant considerations.[22] Justice Riordan outlined the following principles:
(a)The enquiry begins by discerning whether the statute, when properly construed, either required or forbade the decision-maker to have regard to the particular consideration.
(b)Where the statute does not expressly forbid the consideration, the Court will look for any implied limitation.
(c)In determining which considerations the decision-maker must contemplate, the Court will construe the statute with regard to its subject matter, scope and purpose.[23] Further, the decision-maker’s reasons must be read fairly and ‘in the context of the whole of the reasons as well as submissions of the parties.’[24]
(d)Where the Court determines that the decision-maker took into account a factor that the statute, when construed with regard to the above principles, was either explicitly or implicitly forbidden then it must be said that the decision-maker made an irrelevant consideration.[25]
(e)Finally, the Court will consider whether the factor was so insignificant that it would have no material impact on the decision.[26]
[22]R v Independent Broad-Based Anti-Corruption Commissioner [2015] VSC 374, [110] (‘R v IBAC’); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
[23]Ibid, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
[24]R v IBAC (n 22) [110], citing Federal Commissioner of Taxation v Pham (2013) 134 ALD 534 [42].
[25]R v IBAC (n 22) [110(b)(ii)].
[26]Ibid [110(c)].
Further relevant principles include:
(a)An administrative decision-maker’s decision will not ‘be construed minutely and finely with an eye keenly attuned to the perception of error’.[27]
(b)Where the decision-maker holds a broad discretionary power, it is the case that any corrupt or entirely personal or whimsical consideration without any connection to executing proper governmental administration, will be, almost without exception, an irrelevant consideration.[28] Nevertheless, even where a consideration is not deemed personal or whimsical a court may find that, based on proper construction of the statute, the decision-maker has made an irrelevant consideration.[29]
[27]Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36, [16], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
[28]Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, 12.
[29]Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424, [91].
Consideration
The central question for VCAT to determine was whether it was ‘impracticable to obtain the vote.’ As stated above, the applicant had followed the statutory steps to conduct a valid ballot, but various owners had not responded. That could be because:
(a)they did not know of the ballot, even though they had ‘notice’ pursuant to the statutory process; or
(b)they knew of the ballot, but were unwilling or unable, to return a valid ballot.
In the circumstances, I am satisfied that the depth of the campaign engaged in, was an irrelevant consideration.
As discussed above, the statutory requirement to consider whether it was impracticable to obtain the votes does not preclude a decision-maker from taking into account matters beyond the ballot provisions in the Owners Corporations Act. But the considerations must be relevant to that task. In this case, the fact that a campaign was not conducted can only be relevant to the practicability of obtaining votes if there is a basis for concluding that votes were not obtained because the campaign was not conducted, or votes would have been obtained if the campaign was conducted. But there is no apparent basis for either of those conclusions. They are predicated on assumptions about the causal effect between the nature of the campaign that may be conducted and the inclination of owners to vote. The statutory scheme does not mandate any persuasive campaign, it only mandates that owners be given notice of the ballot and its contents. The practicability of obtaining votes must be considered in light of those statutory mandates and procedures. The purpose of s 34D(3)(b) includes, at least, enabling a person to obtain consent when the statutory procedures for obtaining that consent have failed. That purpose would be frustrated if the applicant in this case was required, not only to comply with statutory provisions regarding notice, but also, when owners abstain from voting, to engage in a further campaign (of unspecified content and length) to attempt to induce owners out of the apathy or disinclination they inhabit. Owners are entitled to be disinterested, and it is beyond the scope of the legislative framework to expect that they can, or should, be forced to behave otherwise.
Appeal Ground Four - Serious Illogicality
The applicant submits that:
(a)the VCAT Member erred in law by holding that s 34D(3)(b) of the Subdivision Act was not satisfied in the circumstances of the case because that decision was unreasonable, or seriously illogical, or not open on the evidence.
Principles
The Court in Chief Commissioner of Police v IHF found that legal unreasonableness is not limited to decisions that are ‘irrational’ or ‘bizarre’.[30] Instead, the Court explained:
A decision may be unreasonable if, by reference to the scope and purpose of the relevant statutory provision, the decision-maker has committed a particular error in reasoning, or given disproportionate weight to some factor, or reasoned illogically or irrationally. Further, … the exercise of a statutory discretion may be unreasonable where the decision reached ‘lacks an evident and intelligible justification’ such that ‘the result itself bespeaks error’.[31]
[30]Chief Commissioner of Police v IHF [2021] VSCA 147, [90].
[31]Ibid.
Consideration
I am satisfied the applicant has made out this ground, and the decision should be set aside.
As discussed above, the VCAT Member found that the ballot was validly conducted which means the members must have been notified of the ballot. Insofar as the decision was based on inadequate notice, it is unclear what further notice must be given where there has already been notice in accordance with the statutory requirements of the Owners Corporations Act. The conclusion that more notice is required than the notice provided lacks intelligible justification. If the members were not on notice, then the conclusion that a valid ballot was conducted seems unsupportable.
Insofar as the VCAT Member’s decision is based on the need to engage in a further campaign, it also lacks intelligible justification. As discussed above, VCAT’s jurisdiction is founded on the impracticability of obtaining votes. In this case, the members had notice of the ballot and the terms of the proposal but neither voted nor took any steps in relation to the proposal. The VCAT Member’s reasons are predicated on the conclusion that engaging in a campaign would have resulted in the members engaging in the ballot process. But that is not necessarily so. There is nothing in the reasons to suggest that any of the members gave any indication that they received insufficient information or that the provision of more information would have caused them to respond with their ballot. Further, there is no suggestion that the information provided to the members was misleading in any particular way such that it caused the members not to respond to the ballot. If it is to be concluded that the provision of information would result in obtaining votes, then there needs to be some rational explanation for why that is so. As it is, the decision discloses no such basis.
Relief sought
The applicant seeks the relief that:
(a)leave to appeal be granted, and the appeal is allowed on grounds one to four of the amended notice of appeal;
(b)the orders of the VCAT constituted by the VCAT Member are set aside; and
(c)in lieu thereof, it is ordered that:
(A)the applicant’s application to VCAT is upheld; and
(B)pursuant to s 34D(1)(b) of the Subdivision Act, consent is hereby given on behalf of the respondents in the VCAT proceeding to the proposal to amend the Plan that was put by ballot to the members of the first respondent on or about 15 October 2022.
The applicant also seeks an order that the respondents pay the applicant’s costs of this appeal. If such an order is to be made, and subject to any further submissions, consideration should be given to what notice is required to be given to the respondents, and whether any indemnity certificate under s 4 of the Appeal Costs Act 1998 (Vic) may or should be granted.
The applicant is directed to provide draft orders within seven days of delivery of these reasons, and, if necessary, a further mention will be listed to finalise the terms of the orders.
SCHEDULE OF PARTIES
| S ECI 2024 06997 | |
| BETWEEN: | |
| 888 DEVELOPMENTS PTY LTD ACN: 088 660 208 | Applicant |
| - v - | |
| OWNERS CORPORATION 1 PLAN NO. PS415494H | First Respondent |
| HANAA IBRAHIM | Second Respondent |
| VEENA THANGAVELU | Third Respondent |
| SHOAIB MANSOOR | Fourth Respondent |
| AMBER ZEHRA | Fifth Respondent |
| YANG YAN | Sixth Respondent |
| FIONA YUEN | Seventh Respondent |
| XIAOJIE QIU | Eighth Respondent |
| HANSEUNG LEE | Ninth Respondent |
| KYOUNGJU SON | Tenth Respondent |
| JACK WAN | Eleventh Respondent |
| SCHUMANN SHEN WAN | Twelfth Respondent |
| QIAO WANG | Thirteenth Respondent |
| CONNIE PUI-LING CHAN | Fourteenth Respondent |
| SHANMING XU | Fifteenth Respondent |
| SHUYING WANG | Sixteenth Respondent |
| GAOXIANG QIN | Seventeenth Respondent |
| CHONGJING XU | Eighteenth Respondent |
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