Bishop v Neighbourhood Association DP No 286150

[2025] NSWCATCD 22

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bishop v Neighbourhood Association DP No 286150 [2025] NSWCATCD 22

Hearing dates:

15 August 2024, final written submissions 14 October 2024

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Principal Member

Decision:

(1)      Neighbourhood Association DP No 286150 is to retain appropriately qualified and competent contractors to remove the mooring pole installed within the boundary of Lot 4 in Deposited Plan No 286150 and re-install it, or a pole of equivalent standard and dimensions, on the boundary between Lots 3 and 4, west of the location of the pole removed in 2021, and as close as practicable to that location.

(2)      The work required by order (1) above is to be completed within three months of the date of these orders.

(3)      The application is otherwise dismissed.

(4)      Within 14 days of the date of publication of these orders either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question of costs.

(5)      If either party files an application in accordance with order (4), the other party may within a further 14 days file and serve upon the party which filed the application submissions in response, not exceeding five pages, and any further evidence relevant to the question of costs.

(6)      Unless a party files an application in accordance with order (4) above, there will be no order in relation to the costs of the proceedings.

Catchwords:

LAND LAW – Community Title – Neighbourhood Scheme – Dispute resolution – Tribunal has jurisdiction to resolve a dispute concerning the construction and application of an agreement between a neighbourhood association and a lot owner – Circumstances in which it is appropriate to make an order requiring the neighbourhood association to carry out work required under the agreement

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Community Land Development Act 1989 (NSW)

Community Land Development Act 2021 (NSW)

Community Land Management Act 2021 (NSW) ss 191, 193

Cases Cited:

Byron Shire Council v Vaughan [2002] NSWCA 158

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

Jabbcorp (NSW) Pty Limited v Strathfield Golf Club [2020] NSWSC 1317

Wolverhampton Corporation v Emmons [1901] 1 KB 515

Category:

Principal judgment

Parties:

Tania Bishop (first applicant)
A.B. Investments (VIC) Pty Ltd (second applicant)
Neighbourhood Association DP No 286150 (respondent)

Representation:

Counsel: E Phelan (applicants)

Solicitors: Easton Law (applicants)
Grace Lawyers (respondent)

File Number(s):

2024/00083329

REASONS FOR DECISION

Introduction

1. The respondent, Neighbourhood Association DP No 286150 (the Neighbourhood Association), comprises a marina on an arm of the Murray River at Moama in New South Wales. It was originally constituted under the Community Land Development Act 1989 (NSW) on 2 April 2007.

2. The Community Land Development Act 1989 was repealed and replaced by the Community Land Development Act 2021 (NSW), which commenced operation on 1 December 2021. Pursuant to cl 3 of sch 4 to the Community Land Development Act 2021, the Neighbourhood Association continued after 1 December 2021 as a Neighbourhood Association constituted under the Community Land Development Act 2021.

3. The second applicant, A.B. Investments (VIC) Pty Ltd, is the owner of Lot 4 in the Neighbourhood Association. The first applicant, Ms Bishop, is a director of the second applicant.

4. The Neighbourhood Association consists of 22 lots. Lot 1 is the Neighbourhood Lot. Lots 2 – 22 are each situated within the river and are used, predominantly if not exclusively, for houseboat mooring. The Neighbourhood Plan shows each of lots 2 – 22 as being 9 m wide and 23 m long. The lots are arranged into groups: Lots 2 –7 to the north of what appears to be a boat ramp; and Lots 8 – 22 to the south.

5. The Neighbourhood Plan indicates that the eastern boundary of each lot is on or close to the shoreline and that there is no marking of the western boundary (which is within the river). The Neighbourhood Plan shows mooring posts on the northern boundary of Lot 2, on the southern boundary of Lot 7, and on the boundaries between Lots 3 and 4 and Lots 5 and 6. A similar arrangement, with mooring posts on every second lot boundary, is shown in relation to Lots 8 – 22.

6. The Neighbourhood Plan shows two mooring posts on each boundary, although it does not include any measurement to indicate their positions relative to the shoreline or to each other.

7. The by-laws included in the Neighbourhood Management Statement for the Neighbourhood Association provide, in relation to the use of lots:

4.1    Owners or occupiers of Lots must only use each Lot or any part of a Lot for the purposes of mooring a houseboat.

4.2   Owners and Occupiers of a Lot must ensure that their houseboat is moored entirely within the Lot and does not encroach on any adjoining Lot or, Neighbourhood Property, or Community Property.

8. In December 2017 a number of houseboats in the southern section of the Neighbourhood Association (Lots 8 – 22) caught fire, resulting in damage to or destruction of a number of the mooring poles in that section. The Neighbourhood Association obtained quotations for the replacement of the mooring poles in the course of 2019.

9. On 13 May 2019 Ms Bishop notified the Association’s manager, Mr Stewart, that one of the mooring poles on the boundary between Lots 3 and 4 had been damaged and had fallen onto her houseboat moored in Lot 4.

10. Ms Bishop suggested that the damage was caused by a houseboat moored in Lot 3.

11. The minutes of the Annual General Meeting of the Neighbourhood Association held on 10 August 2019 record, under the item heading “general maintenance”:

“(a) The Committee are collecting information and costs quotes on the replacement of the mooring poles and this will be communicated to all owners once these are sourced and finalised for approval;

…

(d) There is a broken mooring pole between Lots 3 and 4 in 286149 [sic] and the Committee are investigating the possible repair as these are not common property and this would be a cost shared between both lots.”

12. It appears the applicants ceased paying levies to the Neighbourhood Association in respect of Lot 4. On 20 February 2020 Ms Bishop emailed Mr Stewart, in response to the receipt of a final notice in respect of outstanding levies. Ms Bishop stated that the reason they were holding back levies was because the mooring site was “unsafe and un-usable”.

13. Ms Bishop also stated that the mooring pole had fallen into the water.

14. In January 2021 the applicants had the broken mooring pole removed at a cost of $850.

15. The applicants commenced proceedings in the Tribunal on 26 April 2021.

16. On 16 July 2021 the parties attended a mediation conducted by Fair Trading New South Wales. The terms of a settlement reached at that mediation were formalised in a Deed of Settlement executed on 20 August 2021 (the Deed).

17. It is appropriate to set out the relevant provisions of the Deed.

18. The recitals to the Deed are as follows:

“A.   The Applicants own the Mooring.

B.   The Mooring is a lot in the Neighbourhood Plan registered as Deposited Plan No 236150 and the Neighbourhood Association was constituted upon registration of that Neighbourhood Plan,

C.   In May 2019, the Mooring pole was damaged by a neighbouring houseboat.

D.   Since that time, the Applicants have not been able to use the Mooring pole.

E. The Neighbourhood Association has levied contributions on the Applicants under the Community Land Management Act 1989.

F.   The Applicant incurred an $840 expense to remove part of the broken Mooring pole from the Mooring.

G.    On 16 July 2021, at a mediation through NSW Fair Trading, the Parties agreed to settle all Disputes between them and now enter into this Deed to formalise that settlement on the terms and conditions set out in this Deed.”

19. Clause 1.1 contains definitions, relevantly including the following:

“(a)   Amount means the amount outstanding following payment of the Settlement Sum for unpaid contributions levied on the Applicants up to and including 30 September 2021. The total amount of unpaid contributions that would have been levied on the Mooring up to and including 30 September 2021 will be $15,623 plus interest on that amount up to and including 30 September 2021 (which amount will be not less than $1,302.09 plus any additional interest accrued);

…

(d) Claim means, as at the date of this Deed, any all claims, demands. complaints, causes of action. cross-claims (and counter-claims). actions. suits. proceedings, judgments, accounts, rights, liabilities, damages, costs and expenses of any kind whatsoever (including as to legal costs or disbursements) whether past, present, unascertained, future or contingent, but not including a right or obligation arising under this Deed;

(e)   Deed means this deed (including the recitals,. schedules, appendices and exhibits to it);

(f)   Disputes means the:

(i)   Applicants’ complaint that the Mooring pole is damaged and the Neighbourhood Association has failed to repair that damage;

(ii)   Applicants’ complaint that they have incurred $840 to remove part of the broken Mooring pole from the Mooring;

(iii)   Applicants’ complaint that they are entitled to a reduction in part of the contributions levied on the Mooring by the Neighbourhood Association as a result of their inability to use the damaged Mooring pole; and

(iv)    Neighbourhood Association’s complaint that the Applicants have failed to pay contributions levied on the Mooring since 1 November 2019 in the amount of $13,672 plus interest in the amount of $1,302.09 and continuing to accrue at the rate of 10% per annum:

(g)   …

(h)   Mooring means Lot 4 in Deposited Plan No 286150;

(i)   Mooring pole means the western most mooring pole located on the boundary of the Mooring;

(j)   Settlement Sum means the sum of $6.100.91 inclusive of GST.”

20. Clause 2 is headed “Settlement” and provides:

“2.1   Subject to this Deed, the Parties agree:

(a)   The Neighbourhood Association will engage a suitably qualified contractor to repair the Mooring pole in a proper and workmanlike manner to ensure the Mooring pole is fit for its purpose as a mooring pole on or before 30 October 2021 and the Neighbourhood Association will be liable for and indemnify the Applicants for any defects in the replacement mooring.

(b)   The Neighbourhood Association will pay to the Applicants the amount of $840.00 within 14 days of the Parties executing and exchanging counterparts of this Deed (Refund Amount).

(c)   The Refund Amount shall be paid by electronic transfer of funds into the following bank account of the Applicants:

[bank account details omitted]

(d)   Subject to the other provisions of this Deed, the Applicants shall accept the Refund Amount in full and final settlement of any Claims the Applicants have against the Neighbourhood Association regarding the damaged Mooring pole other than claims arising out of this Deed.

(e)   Subject to clause (h) below, the Applicants must pay the Settlement Sum to the Neighbourhood Association within 14 days of the Parties executing and exchanging counterparts of this Deed.

(f)   The Settlement Sum shall be paid by electronic transfer of funds into the following bank account of the Neighbourhood Association:

[bank account details omitted]

(g)   The Neighbourhood Association shall accept the payment of the Settlement Sum in full and final settlement of all outstanding contributions levied on the Mooring up to and including 30 September 2021 and will waive payment by the Applicants of the Amount and any fees charged to the Mooring and directly associated to the Amount (if any).

(h)   The waiver and release in clause 2.1 (g) must be approved and confirmed by the Neighbourhood Association in writing and that approval must be provided to the Applicants.

2.2   Within 7 days of receipt of the payment of the Settlement Sum in accordance with this clause 2, the Neighbourhood Association will provide a levy notice to the Applicants showing a Nil balance owed by the Applicants to the Neighbourhood Association in relation to the Mooring up to and including 30 September 2021. Subject to this Deed, the Applicants acknowledge and agree that they are liable to pay contributions levied on the Mooring by the Neighbourhood Association from 1 October 2021 onwards.

2.3   For the avoidance of doubt, waive in this clause means that any Fees incurred by the Applicant as a debt due and payable to the Neighbourhood Association in relation to the Mooring will be discharged, forgiven and no longer due and payable.”

21. Clause 3, which is headed “Releases and discharges”, provides:

“Subject to the Parties complying with clause 2 and this Deed generally, the Parties hereby release and forever discharge each other from all and any Claims of whatever nature arising directly or indirectly from, or relating to, or caused by the Disputes, except for claims either may have to enforce this Deed.”

22. Clause 4, headed “Further Assurances”, provides:

“Each Party to this Deed must promptly, at its own cost, do all things (including executing all documents as may be reasonably required by other Parties) necessary or desirable to give full effect to the terms and conditions of this Deed. The Applicants acknowledge that the Neighbourhood Association must approve the entering into of this Deed at a general meeting of the Neighbourhood Association.”

23. The Deed also contains clauses acknowledging that the parties had obtained independent advice, that no failure or delay in exercising any right would operate as a waiver of such a right, that any variation, modification or waiver of any provision of the deed must be in writing, and an “entire agreement” clause.

24. The Neighbourhood Association ratified and approved the Deed at its Annual General Meeting held on 10 May 2022.

25. In September 2021 the Neighbourhood Association, (together with Neighbourhood Association DP No 286149, also a marina) entered into a contract with Elstone Diving Services Pty Ltd for the carrying out of works including pile extension and pile repair within the two Neighbourhood Associations as well as “post-fire berth cleanup”. The description of the scope of works included:

“The broken pile will have the broken section removed by our commercial dive team, they will also remove any reinforcement that may interfere with the steel sleeve being fitted. Once the pile has been prepared a 12 m steel sleeve will be driven to height, where the HDPE Sleeve will be fitted and the pile concrete filled as per the pile extension works, together with a pile being fitted.”

26. Elstone Diving Services carried out work pursuant to the contract in February 2022.

27. The broken mooring pole on the boundary between Lots 3 and 4 was not replaced with a pole in the same position. The evidence discloses that a new pole was placed inside Lot 4 rather than on the boundary between Lots 3 and 4.

28. The evidence of Mr Lakey, project manager for Elstone Diving Services, was that the pole was placed in line with other mooring poles, up to 600 mm in from the boundary between Lots 3 and 4. Mr Lakey’s written evidence was:

“The Steel and HDPE Sleeved Pile was installed in this location, the pile was a 12m x 400NB x 12.7mm Wall Thickness Pile, with a 450mm Diameter HDPE Sleeve fitted for corrosion protection and vessel protection. This design was provided by a third party engineer and is considered a typical mooring pile.

The piling works were completed in March 2022.

It was not possible to drive a pile in the original position as the old broken off concrete pile (Pile butt) was in situ. It is not possible to drive over the concrete pile butt as it has steel and concrete debris attached, which meant that any new pile can only be driven near the old pile.”

29. In his oral evidence, Mr Lakey stated that the position of the pole was determined by the workers on site at the time of installation in consultation with the “maintenance personnel from the marina”. Mr Lakey accepted that the pole could have been placed on the boundary between Lots 3 and 4 to the west (that is on the river side) of the location of the original pole.

30. In re-examination Mr Lakey qualified that answer somewhat by pointing out that there could be obstacles such as old tree stumps on the riverbed which would prevent a pile being installed at a particular location. Mr Lakey also gave evidence in re-examination that:

“The one thing I would say is when we went back in May 2022 and did our measurements, we did note that although the moorings are all supposed to be the same size they are not. There is 2 to 3, 400 mm difference in every single one of the moorings, so some of them are wider than others, some of them are narrower”

and that

“[M]ost of the berths we measured were about 17.5 m between piles … In the case of the … pile that we are discussing, that was 16.9 m between piles, so, yes, that was 600 mm difference, but there were others that were 15.9 m away.”

31. On 11 May 2022 Ms Easton, the applicants’ solicitor, wrote to Mr Stewart stating:

“We are instructed as follows:

The pole has been incorrectly positioned;

The pole has been placed almost one metre inside where the previous pole stood;

This was discovered when trying to manoeuvre and park the houseboat into place; and

It is impossible to park a full size houseboat while the pole remains in its current location.”

32. Ms Easton asserted that the Neighbourhood Association was in breach of the Deed and that “the waiver of fees will continue until mooring works have been completed and are fit for purpose.”

33. On 10 June 2022 Ms Easton wrote to Mr Stewart recording that a meeting had been held on the site on 28 May 2022 and that “it was agreed that the mooring pole has been placed in the wrong position” and again asserting that the applicants “remained unable to use the mooring.”

34. On 14 June 2022 Mr Stewart emailed Ms Easton asserting that the pole was fit for purpose and attaching a photograph said to show a boat moored within Lot 4.

35. The email concluded:

“We have agreed that the pole will be relocated and are awaiting notification from Elstone as to when these works can be carried out. In the interim, the Bishops can use their mooring for its intended purpose. Alternatively, we could arrange short term usage of another lot, at no charge, until the pole is relocated. On this basis, we believe that the levies should still be due and payable.”

36. Mr Stewart sent Ms Easton another email on 1 August 2022 “confirming” that the works (to move or replace the pole) would commence in August. Mr Stewart stated that the fees for Lot 4 since the time the pole was installed would be treated as overdue and payable.

37. On 16 January 2023 Ms Easton wrote to Mr Stewart noting that the works had not taken place in August 2022.

38. On 23 January 2023 Mr Stewart replied advising:

1. That the works did not commence due to “weather events” including flooding;

2. That levies to 31 December 2022 had been “removed”;

3. That the works would be completed in the first quarter of 2023 “pending contractor availability”; and

4. “We will also deal with the levies for the quarter ending 31 March 2023 when the works are completed”

39. Ms Easton followed up on 13 February 2023 and Ms Easton and Mr Stewart continued to exchange emails through 2023.

40. On 24 November 2023 Mr Stewart confirmed that the Neighbourhood Association would pay for an alternative mooring to be made available to the applicants.

The Application

41. The application in these proceedings was filed on 28 February 2024. Although, initially, only Ms Bishop was named as an applicant, the second applicant was joined as an applicant at the hearing.

41. The application sought orders:

1. An order that the Neighbourhood Association comply with its obligations under the Deed within 14 days, including replacing the mooring pole in Lot 4 so as to render the mooring usable pursuant to its functions and obligations.

2. An order to credit the applicant any levies, or a percentage thereof, and any interest upon those levies, from November 2019 until the date that the repairs to the mooring pole are completed to a reasonable standard.

3. Costs.

43. In submissions filed after the hearing, the applicants submitted that the appropriate form of order 1 should include the words “on the boundary of Lot 4”, and that order 2 should relate to levies from 30 September 2021 rather than November 2019 (presumably on the basis that the applicants’ liability for levies up to 30 September 2021 is determined by the Deed).

The Hearing

44. The hearing took place on 15 August 2024 by video link. Ms Phelan of counsel appeared for the applicants. Mr Ton, solicitor, appeared for the respondent.

Evidence

45. Each party had filed evidence in advance of the hearing. The Neighbourhood Association objected to some of the applicants’ evidence. One paragraph of Ms Bishop’s statement was rejected as argumentative and conclusory. Other parts of her statement and affidavit were treated as submissions only.

46. Subject to my rulings on the objections, the applicants’ evidence comprised:

Exhibit A: An affidavit of Tania Bishop dated 2 August 2024 with three annexures. Annexure A was a statement made by Ms Bishop on 28 February 2024 with its own annexures. Some of the annexures to the statement were photocopied black-and-white versions of photographs which could have provided no evidence of assistance to the Tribunal. However, it appears that colour versions of those photographs are included elsewhere in the evidence. Annexures B and C to Ms Bishop’s affidavit were photographs. Annexure B was identified by Ms Bishop as the photograph attached to Mr Stewart’s email of 14 June 2022. Annexure C was identified by Ms Bishop as a photograph of her houseboat.

Exhibit B: A letter dated 9 April 2024 signed by Mr Ben Trevena, of BT Marine Works. Mr Trevena’s letter was objected to on the basis that Mr Trevena was not available for cross examination. However, notice that he was required for cross examination was given only two days in advance of the hearing. In the circumstances, I admitted Mr Trevena’s letter subject to weight. Ultimately, in my view, the only evidence emerging from Mr Trevena’s letter, which might be relevant in the proceedings and is not either apparent from other documents or bare opinion unsupported by reasoning or any identification of Mr Trevena’s qualification to express the opinion, is the statement that “a typical houseboat measures 8 m wide by 18 m long”.

47. The respondent’s evidence comprised:

Exhibit 1: A statement signed by James Stewart dated 4 July 2024 together with the annexures to that statement.

Exhibit 2: A letter dated 4 July 2024 signed by Scott Lakey of Elstone Diving Services Pty Ltd. (The substance of Mr Lakey’s letter is set out above.)

48. Each of Ms Bishop, Mr Stewart and Mr Lakey gave oral evidence and affirmed their respective statements (or letter in Mr Lakey’s case) and were subject to cross examination.

49. At the conclusion of the hearing, I made directions for the exchange of written submissions. The applicants filed written submissions on 5 September 2024. The respondent filed written submissions on 2 October 2024 and the applicants filed submissions in reply, together with a further copy of their submissions in chief annotated with transcript references, on 14 October 2024. The parties helpfully provided a transcript of the hearing.

Jurisdiction

50. In particulars filed on 11 April 2024, the applicants identified the source of jurisdiction in respect of order 1 sought in the application as ss 190, 191 and 193 of the Community Land Management Act 2021 (NSW) (CLMA). The source of jurisdiction in respect of order 2 sought in the application was identified as ss 90(9), 92, 190 and 193 of the CLMA.

51. The applicants did not press any case reliant upon s 92 of the CLMA at the hearing or in final submissions.

52. The remaining sections relied upon by the applicants relevantly provide as follows:

90   Interest, discounts on contributions and payment plans

…

(9)  The Tribunal or a court may, on application by a member, order that no interest is chargeable on a specified contribution if the Tribunal or the court is satisfied that the association should reasonably have made a determination not to charge interest for the late contribution.

190   General order-making power of Tribunal

The Tribunal may, in proceedings before it under this Act, make 1 or more of the following orders or other decisions—

(a)  an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate,

(b)  an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013.

191   Agreements and arrangements arising from mediation sessions

(1)  The Tribunal may make orders to give effect to an agreement or arrangement arising out of a mediation session.

(2)  An order may be made whether or not the mediation was carried out in accordance with this Part or by a mediator within the meaning of this Part.

…

(5)  This Part does not affect the enforceability of other agreements or arrangements that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.

193   Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, make an order to settle a complaint or dispute about any of the following—

(a)  the operation, administration or management of a scheme under this Act,

(b)  an agreement authorised or required to be entered into under this Act,

(c)  an agreement appointing a managing agent or a facilities manager,

(d)  an agreement between the association or strata corporation and an owner, mortgagee or covenant chargee of a lot in a scheme that relates to the scheme or a matter arising under the scheme,

(e)  an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a scheme,

(f)  an exercise of, or failure to exercise, a function conferred or imposed on an association or strata corporation under another Act.

(2) Failure to exercise a function For the purposes of this section, an association, strata corporation or association committee is taken not to have exercised a function if—

(a)  it decides not to exercise the function, or

(b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

…

(5) Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

53. The Neighbourhood Association did not dispute that the Tribunal had jurisdiction pursuant to s 191 of the CMLA to make orders to enforce the Deed.

54. In my view, that concession may not be correct. It is arguable that s 191 is directed to the making of orders contemplated by an agreement reached at a mediation session, not orders for the resolution of disputes about the operation of an agreement reached at a mediation session.

55. However, whether or not that is correct, it is clear in my view that the Tribunal is given jurisdiction pursuant to s 193(1)(d) of the CMLA to make orders to resolve a dispute about the operation of the Deed, which is an agreement between the Neighbourhood Association and the owner of a lot that relates to the Neighbourhood Scheme or a matter arising under the Neighbourhood Scheme.

56. As pressed at the hearing and in their written submissions, the applicants’ case in relation to levies relied upon s 191 (or ss 90(9), 190 and 193 in the alternative) on the basis that the Deed, properly construed, requires the Neighbourhood Association to waive levies in respect of Lot 4 until the terms of the Deed regarding the repair of the mooring pole have been complied with.

57. The applicants also maintained that the Neighbourhood Association was estopped, by its actions subsequent to the execution of the Deed, from “denying that they have breached clause 2.1(a) or that they are not obliged to provide a fee waiver”.

58. If appropriate, I will consider whether the Tribunal has jurisdiction to enforce any such estoppel when considering whether any such estoppel is made out.

59. I am satisfied that, at least to the extent that the applicants seek orders for the enforcement of the Deed, the Tribunal has jurisdiction to determine the dispute.

60. I turn to consider the orders sought by the applicants.

Placement of the mooring pole

61. The central issue for determination is whether the Neighbourhood Association has complied with cl 2.1(a) of the Deed by arranging for the installation of a mooring pole within Lot 4 rather than on the boundary between Lots 3 and 4.

62. I note immediately that I do not regard the extent to which the pole has been installed within Lot 4 as trivial or de minimis.

63. Although neither party provided survey evidence to establish the precise location of the pole, Mr Lakey’s evidence, which I accept in this regard, was that he measured the distance between the replacement pole and the adjacent pole (obviously the pole on the boundary between Lots 5 and 6) and found it to be 16.9 m, that is 600 mm less than the distance between the poles in “most of the berths” of 17.5 m.

64. That is consistent with other evidence given by Mr Lakey.

65. I am satisfied that the replacement pole has been installed within Lot 4, with its centre approximately 600 mm from the boundary between Lots 3 and 4.

66. The applicants submitted that the fact that the pole was not installed on the boundary was itself sufficient to establish breach of cl 2.1(a). The applicants relied upon the definition of “Mooring pole” in cl 1.1(i) as “the western most mooring pole located on the boundary of the Mooring”.

67. The applicants submitted that cl 2.1(a) “isn’t aimed at repairing the Mooring, it is aimed at repairing the Mooring pole which is specifically defined as being on the boundary of the Lot”.

68. The applicants submitted, in respect of the construction propounded by the Neighbourhood Association that cl 2.1(a) required only that the pole be fit for use as a mooring pole without regard to its location in relation to the boundaries of Lot 4 or the pre-existing pole:

“24.   The Applicants submit that such a narrow construction of clause 2.1(a) of the Settlement Deed should not be accepted by the Tribunal, particularly where:

a.   clause 2.1 (a) includes the words ‘repair the Mooring pole’ demonstrating that there was to be a continuation or connection to the existing mooring pole which was located on the boundary of the lot;

b.   Mooring pole was defined in clause 1.1 of the Settlement Deed as: ‘the western most mooring pole located on the boundary of the Mooring’ and Mooring was defined as ‘Lot 4 in Deposited Plan No 286150’. These definitions import into clause 2.1(a) a requirement for the Mooring Pole to be located on the boundary of Lot 4;

c.   clause 2.1 (a) including the words ‘proper and workmanlike manner to ensure the Mooring pole is fit for its purpose as a mooring pole’ clearly demonstrates that the parties turned their attention to the quality of the repair works and turned their mind to the purpose of the Mooring Pole, which can only be used to moor houseboats in this Marina. The size reduction to Lot 4 limits the sizes of the houseboats that can be moored there; and

d.   the construction proposed by the Respondent could produce an absurd result in that a Mooring Pole could be installed anywhere on or outside of Lot 4 but provided it could function as a pole, it would still meet the requirements in clause 2.1 (a).

25.   If the Mooring Pole were to be installed on Lot 4 (as it has been) and as allowable under the Respondent’s construction, the ropes tying the adjacent houseboat encroach upon Lot 4 (by between 65 and 85 centimetres), placing the adjacent lot owner in breach of By-Law 4.2 …”

69. The Neighbourhood Association submitted that the obligation imposed upon the Neighbourhood Association by cl 2.1(a) was to install a mooring pole that was “fit for its purpose as a mooring pole”.

70. The Neighbourhood Association pointed to evidence given by Ms Bishop:

“23   The applicant sold two thirds of her houseboat in December 2020 and the remainder in January 2022.

24   The applicant has never attempted to moor houseboat in her lot in its present configuration (she owned a third of the houseboat between December 2020 and January 2022) and does not know one way or another whether it is possible to do so.

25    The houseboat was manoeuvred into the applicant’s lot driven forward and with the use of spotter. It would then be tied up tight against the mooring poles so the houseboat would not move.”

71. The Neighbourhood Association accepted that, in the context where the pre-existing pole had been removed by the date of the Deed, “repair” in cl 2.1(a) should be construed as “replace”. I note that cl 2.1(a) of the Deed refers to the pole as “the replacement mooring”.

72. The Neighbourhood Association submitted:

“52   Although there is dispute about the impact of the installation of the mooring pole in its position, there is no suggestion the mooring pole itself is defective or cannot be used “as a mooring pole”. The real issue between the parties is whether the “mooring”, being the applicant’s lot, can be used as to moor houseboats and whether the Tribunal is able to make a specific performance order in the terms sought in the strata application or at all.

53    The evidence before the Tribunal on the extent to which the applicant’s lot can be used to moor a houseboat is as follows:

a.   The dimensions of the applicant’s lot is 9m in width and 23m in length;

b.   The mooring pole in question is the one at the rear of the lot, nearest the shore;

c.   The applicant sold majority share in her houseboat in December 2020 and has not owned a houseboat of any kind since 2020 and personally has had no need to moor a houseboat in the applicant’s lot;

d.   The applicant has never attempted to using the new mooring pole (mooring) and cannot say whether a houseboat (of any kind) can use the mooring in its present configuration;

e.   There is no survey plan or similar to determine where the previous mooring pole was located by reference to the boundary between lots 3 and 4, nor where the current mooring pole is located;

f.   The distance the new mooring pole has been moved inside the boundary of the applicant’s lot is a maximum of 650mm. While there was a reference of a distance of up to 850mm during the cross-examination of Mr Lakey from Elstone, this was not by reference to the centre of the mooring pole. This means the available width at the rear of the mooring (the front of the mooring remains the same) is approximately 8.35m — 8.15m;

g.   Using mathematical formula to calculate the angle of a houseboat when moored, an encroachment of 0.65m amounts to an angle of 1.619 degrees over 23m, and an encroachment of 0.85m amounts to an angle of 2.116 degrees over 23m;

h.   The applicant’s former houseboat was between 7.35m - 7.5m in width. The applicant emphasises the purpose of the Deed was so that it would fit her houseboat. The available width at the rear of mooring is between 1m and 1.35m, noting that houseboat is up hard against the mooring pool [sic, pole];

i.   The applicant’s evidence is that a houseboat is manoeuvred into a mooring in a forwards position, with a spotter (in addition to the driver), and is moored right up against the mooring pole. This means even if the applicant still owned her houseboat, she would have the full width of the mooring at the entrance and 1.15-1.35m available on the side of the houseboat opposite to the mooring pole at the rear of the mooring near the shore;

j.   Mr Lakey gave evidence that the mooring could still be used even if one were to assume a width of a houseboat to be 8m (this is significantly wider that the applicant’s former houseboat and wider than the other houseboats that the respondent has identified as being moored nearby). The applicant’s counsel attempted to challenge Mr Lakey’s evidence on this but made no inroads.”

73. I note the following:

1. Paragraph 53(b) of the Neighbourhood Association’s submissions is incorrect. The mooring pole installed within Lot 4 is not the pole nearest the shore. That is clear from the definition of “Mooring pole” as the “western most” mooring pole.

2. The evidence given by Mr Lakey was that the pole itself was 450 mm or 500mm in diameter, so that the inner edge of the pole installed by Elstone would be 825 mm to 850 mm inside the boundary, that leaves 8.175 m to 8.15 m between the mooring pole and the southern boundary of the lot

3. The calculations in paragraph 53(g) of the Neighbourhood Association’s submissions fail to acknowledge that the mooring pole is not and was never on the western boundary of the lot. As shown in the Neighbourhood Plan and in the photograph attached to Mr Stewart’s email of 14 June 2021 (Annexure B to Ms Bishop’s affidavit), the mooring poles are installed a number of metres from either end of the lots. It follows that a houseboat tied up tightly to both mooring poles would be offset at the western end by more than 600 mm

4. The evidence from Mr Lakey referred to in paragraph 53 (j) was:

“MR TON: Okay. You were asked a question about whether there is a diminution of use of the … mooring lot 4 there. …[A]re you aware that the use that this particular lot owner says she wished to use it for was for houseboats?

MR LAKEY: We’re aware it was for houseboats, but we didn’t know anything about the houseboat, how large it was or how small it was.

MR TON: Yes. So … assuming that the use you are being asked to describe is the diminution of uses of those houseboats, … do you know one way whether the current location of the mooring pole actually prevents the use of moor[ing 4] to moor a houseboat?

MR LAKEY: I think that the mooring pile is suitable and that was designed and engineered to be a suitable mooring pole for a houseboat. It is … definitely suitable to be a houseboat mooring.

MR TON: Okay, so would it prevent someone from parking a houseboat in the mooring?

MR LAKEY: No.

MR TON: Okay. All right. Let us assume, for argument’s sake, that the houseboat was 8 metres wide. Does that - does that your opinion about whether that houseboat can be use lot 4 as it is currently configured?

MR LAKEY: No.

…

MS PHELAN: Mr Lakey, I just want to understand your - in cross-examination you gave evidence that the way that the mooring pole was positioned decreased the size of the lot and yet now you have given evidence that regardless of that decrease in size the lot can still fit a houseboat?

MR LAKEY: Correct.

MS PHELAN: How do you reconcile those two statements?

MR LAKEY: … [C]an I use a real-world example that everybody in this screen can understand. You have a car park, all right, you drive your car into the car park, all right, by law the car park has to be a certain width and a certain length.

Let us just worry about the width here, that is where we are. It depends on how well you drive depends on as to how well you park your car in that car park, and with the mooring for a houseboat.

TRIBUNAL: Mr Lakey, I should probably disclose to the parties that I used to own a boat, and it’s not like parking a car.

MR LAKEY: I totally agree, sir.”

74. The Neighbourhood Association submitted:

“54    Based on the tested evidence before the Tribunal the applicant has not proven the mooring is ‘unusable’ and indeed the evidence is that even a very large houseboat similar to the one previously but no longer owned by the applicant is able to moor in the applicant’s lot.”

75. In their reply submissions, the applicants submitted that the Neighbourhood Association had, by conduct including Mr Stewart’s repeated statements that the Neighbourhood Association would move the pole, admitted that the Neighbourhood Association was in breach of the Deed.

76. The applicants further submitted:

“17 … The objective, photographic evidence, clearly reveals that a very large houseboat would not be able to be moored in Lot 4 as demonstrated by the photo attached to Mr Stewart’s email of 4 July 2024 [sic]”.

Consideration – Placement of the pole

77. I do not consider it relevant that Ms Bishop has sold her houseboat, the value of Lot 4 is clearly dependent upon it being able to be used for mooring houseboats. For that reason, I also do not consider that the precise dimensions of Ms Bishop’s houseboat are relevant.

78. I am satisfied that, properly construed, the Deed required the replacement mooring pole to be installed on the boundary.

79. The Deed required the pole to be ‘repaired’, which, although that must mean ‘replaced’ in circumstances where the previous pole had been removed, required the pole to be constructed so as to be roughly equivalent to the pre-existing pole.

80. The pole was required to be fit for purpose “as a mooring pole”. That requirement must be construed in context. That context included the provisions of the Neighbourhood Management Statement which permitted Lot 4 to be used only for the purpose of mooring a houseboat and prohibited lot owners from permitting their houseboats to encroach on adjacent lots. The construction of the mooring pole within Lot 4 would compel any houseboat moored within Lot 3 to infringe the latter requirement.

81. It must also be taken into account that houseboats vary in size. Almost by definition, any change in the position of the mooring pole which reduced the effective width of the lot reduced the utility of the lot for the mooring of houseboats. Mr Lakey’s evidence that a skilled driver could park an 8 m wide houseboat within the lot does not establish that the mooring pole was fit for purpose. It might reasonably be anticipated that not all drivers would have the necessary level of skill.

82. Accordingly, I conclude that the Neighbourhood Association is in breach of cl 2.1(a) of the Deed because the mooring pole is not “fit for its purpose as a mooring pole”.

83. The placement of the mooring pole has reduced the size of houseboat that can safely be moored within the lot and has made more difficult the use of the lot by houseboats that do fit within the lot.

84. In reaching the conclusion that the Neighbourhood Association is in breach of cl 2.1(a), I have not had regard to the conduct of the Neighbourhood Association, or its managing agent, after the installation of the pole. Even if Mr Stewart were considered to have had ostensible authority to make representations on behalf the Neighbourhood Association concerning its compliance with the Deed, the fact that Mr Stewart indicated a willingness to undertake the moving of the pole does not constitute an admission that the Neighbourhood Association had breached the Deed by allowing its contractor to install the pole in a location not on the boundary of the lot.

The waiver of levies

85. The applicants submitted that the use of the words “subject to this Deed” in cl 2.2 of the Deed indicated that the applicants’ acknowledgement of liability for levies from 1 October 2021 was not applicable if the Neighbourhood Association did not comply with its obligations pursuant to cl 2.1(a) to repair the pole.

86. The applicants also pointed to the fact that both of cll 2.1 and 3 included the words “subject to this Deed” or “subject to the parties complying with clause 2 and this Deed generally”.

87. The applicants submitted:

“31.   In that respect, the Tribunal should have regard to the entirety of the Settlement Deed, the intention of the parties and the documents predating entry into the Settlement Deed.

32.   Reading the Settlement Deed as a whole, it was the clear intention of the parties that the waiver was linked to the repair of the Mooring Pole and would continue until the Respondent had complied with its obligations in clause 2.1(a). This is why both the repair of the Mooring Pole and the fee waiver were included in clause 2 and dates of the repair and fee waiver are closely aligned.”

88. The applicants also relied upon the terms of settlement recorded by Fair Trading New South Wales at the mediation:

“The neighbourhood association will convene a general meeting and put a motion to waive the balance of the applicant’s unpaid levy contributions up to and including 30 September 2021, subtracting the amount of $6,100.91.

In addition, the applicant may seek a further waiver of levy contributions if the works to replace the mooring poles are not completed by 30 October 2021; ...”

89. The applicants submitted that those terms:

“34.    … [S]howed that the Applicant could expect a further waiver if the works were not completed by 30 October 2021, which shows the parties’ intention as to there being a further waiver, but also, that the waiver was clearly to be tied to the replacement of the Mooring Pole.

35.    As to the entire agreement clause contained in clause 10 of the Settlement Deed, reference to extrinsic material is still open to the Tribunal where the meaning of words in the contract cannot be inferred solely from its terms because those terms are ambiguous. That is the case here.”

90. In support of the proposition set out in para 35 of their submissions, the applicants referred to the judgment of Ball J in Jabbcorp (NSW) Pty Limited v Strathfield Golf Club [2020] NSWSC 1317 at [63]. His Honour stated, with reference to the principles regarding when it is permissible to have regard to extrinsic material:

“63 There is a question concerning the extent to which these principles are modified by an entire agreement clause such as cl 3.2 of the Formal Instrument of Agreement. The answer to that question must turn on the correct construction of the entire agreement clause itself. It seems plain that a clearly worded clause (as cl 3.2 is) has the effect of answering the question whether the contract is contained wholly in the written terms: see Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyd’s Rep 611 at 614 per Lightman J. It has also been suggested that such a clause may limit the use that can be made of extrinsic material in interpreting the contract. So, for example, Davies JA stated the effect of such a clause in these terms in MacDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152 at 156:

The purpose … is to exclude any such evidence either to prove terms additional to or different from the written instrument or collateral contracts or to construe the instrument in a way different from the meaning to be inferred solely from its terms.

Even accepting that statement of the effect of entire agreement clauses, it still leaves open the possibility of considering extrinsic material where the meaning of words in the contract cannot be inferred solely from its terms because those terms are ambiguous.”

91. The applicants also maintained that the Neighbourhood Association was estopped from denying that the applicants were entitled to a waiver of fees until the pole was correctly repaired, by reason of:

1. An email from Mr Stewart to Ms Bishop sent on 15 December 2021 (after the pole should have been repaired but before Elstone had installed the pole within Lot 4) in which Mr Stewart stated:

“We further confirm that the waiver will continue as we agreed until the works have been completed.”

and

2. The email from Mr Stewart to Ms Easton sent on 23 January 2023 summarised at [38] above.

92. The Neighbourhood Association submitted that the applicants’ submissions concerning the construction of clause 2.2 should be rejected because:

“64 …

… the “subject to” in clause 2.2 refers to the applicant’s acknowledgment that she is liable for levies from 1 October 2021. It has nothing to say about the respondent’s right to levy and receive payment for ordinary levies under the Act. On any view, at its highest, all the phrase “subject to” does is remove the contractual restriction on the applicant from disputing levies post 1 October 2021. This does not mean the respondent is precluded from claiming or the Tribunal from ordering the applicant to pay her due levies should the respondent take action to recover same.”

93. In respect of the applicants’ estoppel case the Neighbourhood Association submitted (at paragraph 6(4).1 of its submissions):

“1. The applicant has not articulated an identifiable “estoppel claim. There is no such thing as a general estoppel, and neither the Tribunal nor the respondent should be left guessing what actual type of estoppel claim is being made (which is still unknown);”

94. The Neighbourhood Association also submitted that it was prejudiced by the applicants raising an estoppel case at the hearing as it had not had an opportunity to investigate or put on rebuttal evidence.

95. The applicants submitted in reply that:

“21 The Applicants maintain that the parties intended for the Settlement Deed to grant the Applicants a fee waiver until the mooring Pole was effectively repaired and s 191(a) of the Act gives the Tribunal a power to make an order in relation to fees.”

96. In respect of the estoppel claim, the applicants submitted:

“5 … [I]t is clear given the conduct set out [being the communications from Mr Stewart] that the Applicants rely on common law estoppel by representation. The essence of the estoppel claim is that the Respondent has, by representation, conveyed to the Applicants that it has accepted its breach of the Settlement Deed and taken steps to rectify that breach, in reliance on which the Applicants have prosecuted these proceedings without obtaining evidence as to its damages or a scope of works for rectification.”

97. The applicants further submitted that the Neighbourhood Association was not denied natural justice in respect of the estoppel claim in that:

“[T]he estoppel claim has arisen from evidence that has been in the hands of the Respondent the entire time and the specific conduct relied upon was highlighted by the Applicants prior to the hearing.”

Consideration – Waiver of levies

98. In my view the terms of the Deed are quite explicit: that the parties had resolved the dispute regarding the second applicant’s liability for levies by the payment of the “Settlement Sum” in return for a release in respect of levies due up to 30 September 2021; and that the second applicant would be liable for levies from 1 October 2021.

99. There is no ambiguity in the Deed which would warrant consideration of extrinsic material.

100. There is, in any event, nothing in the surrounding circumstances to warrant the conclusion that the parties intended there would be a waiver of levies until the mooring pole was fixed.

101. The document prepared at the mediation is the most obvious form of parol evidence, reference to which must be excluded by the ordinary principles of contract interpretation (Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 - 353; [1982] HCA 24), and even more so by the entire agreement clause.

102. The conduct of the Neighbourhood Association, communicated to the applicants by Mr Stewart, in waiving levies up to 31 December 2022 or 31 March 2023 ^[1] does not constitute any admission that the Neighbourhood Association is obliged to waive fees until the terms of cl 2.1(a) are complied with. Nor does it constitute a representation that the Deed should be so interpreted.

     1. There is no direct evidence of the waiver of fees up to 31 March 2023 but the ledger included in Mr Stewart’s evidence appears to indicate that levies in respect of Lot 4 are paid up to 31 March 2023, by virtue of the payment of the Settlement Sum on 30 March 2022 and a credit in respect of levies from 1 January 2022 to 31 March 2023 recorded on 14 May 2023.

103. Moreover, although the applicants purport to rely upon estoppel by representation, they have not identified any act or omission by the applicants undertaken in reliance upon any such representation. Action or inaction in reliance upon the representation is an essential element of estoppel by representation: Byron Shire Council v Vaughan [2002] NSWCA 158 at [37]-[38].

104. The applicant’s submissions in reply suggest that the applicants failed to lead evidence of the cost of moving the pole or the damages flowing from the Neighbourhood Association’s breach of cl 2.1(a) in reliance upon Mr Stewart’s representations. However, the applicants do not point to any evidence of such reliance.

105. There is no suggestion anywhere in Ms Bishop’s affidavit or statement that she had refrained from leading evidence of her loss (or the second applicant’s loss) flowing from the incorrect placement of the pole in reliance upon the representations made by Mr Stewart.

106. It may very well be the case that the applicants overlooked the fact that, if their submissions concerning the interpretation of clause 2.2 of the Deed were not to succeed, they might nevertheless have a claim for damages for breach of the Deed arising from incorrect placement of the pole. However, the Tribunal cannot infer from the fact that the applicants did not lead evidence in support of such a claim that the applicants did not do so because they relied upon representations by the Neighbourhood Association, which in any event went no further than suggesting that the Neighbourhood Association would do exactly what it did, that is waive the levies up to 31 March 2023.

107. There was no representation identified by the applicants that the Neighbourhood Association would waive fees beyond 31 March 2023.

108. Such a representation would in any event have clearly been falsified by the Neighbourhood Association seeking payment of levies accruing after 31 March 2023, well before the applicants finalised their evidence in the proceedings.

109. Accordingly, the applicants’ claim that the Neighbourhood Association is obliged to waive, or release the second applicant from liability for, levies in respect of Lot 4 until the placement of the pole is rectified must fail.

110. Although the applicants did not formally withdraw any reliance upon s 90 of the CLMA, they did not in final submissions point to any basis upon which the Tribunal might find that the Neighbourhood Association should reasonably have determined not to charge interest on outstanding levies. I do not consider that such an order would be appropriate in the circumstances as presented to me.

Remedy

111. I have already noted above that the applicants did not lead evidence of damages sustained by reason of the Neighbourhood Association’s breach of the Deed.

112. Ms Bishop’s statement included the assertion: “The cost of renting another mooring is approximately $5200-$7800 per annum.”

113. However, there is no evidence that the second applicant did rent another mooring. In fact, the evidence was to the contrary, and it is also the case that the Neighbourhood Association offered to provide an alternative mooring at no cost.

114. There were suggestions in Ms Bishop’s evidence that her decision to sell her houseboat may have been influenced by the issues experienced with the mooring on Lot 4, but there was no substantial evidence which would enable assessment of such events or the extent to which they might sound in damages.

115. The main order sought by the applicants in respect of the breach of cl 2.1(a) is an order requiring the Neighbourhood Association to move to move or remove the pole within Lot 4 and install the pole (or a replacement pole) on the boundary between Lots 3 and 4.

116. The Neighbourhood Association submitted that the Tribunal should not make such an order. Firstly, the Neighbourhood Association submitted that:

“37   Other than assert the Tribunal should order the respondent to comply with Clause 2.1(a) of the Deed, the applicant has not formulated an order setting out what specific steps are required to be taken nor has an expert report been obtained providing a scope of works. For example:

a.   No survey plan or other investigation has been carried out to determine the locations of the boundary, and at which a mooring pole can or should be installed;

b.   No investigation has been carried out to determine whether the pole can be installed on a particular location on the boundary;

c.   No specification has been provided as to what is to be installed to ensure a ‘like for like’ basis;

d.   No consideration has been given to what is to occur if the mooring pole cannot be installed on the boundary or another location acceptable to the applicant;

e.   No consideration has been given as to who is to supervise and make on site decisions. Considering the considerable history of dispute, it is a recipe for further conflict to order one party to provide service to the other where there are so many issues that has not been resolved in the applicant’s evidence;

f.   No consideration has been given to how the parties are to overcome any planning and consent obstacles (which had arisen previously).”

117. The Neighbourhood Association referred to the decision of Parker J in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry Park) at [111] - [114] and submitted:

“It is accepted the principle arising from the Glenquarry decision has been qualified where an owners corporation already has a strict statutory obligation to investigate and maintain common property pursuant to Section 106 of the Strata Schemes Management Act 2015 (NSW). However, that qualification does not arise in these proceedings (as already submitted the mooring pole is lot property and not neighbourhood property. The respondent has no duty, let alone a strict one, to maintain the mooring pole).”

118. The Neighbourhood Association also submitted, by reference to authorities concerning the specific performance of building contracts, in particular the judgment of Romer LJ in Wolverhampton Corporation v Emmons [1901] 1 KB 515 at 524-525, that the special circumstances in which a court might order specific performance of a building contract were not present in this case and that the Tribunal should not make an order requiring the Neighbourhood Association to carry out works to rectify the mooring pole. The Neighbourhood Association submitted that the particulars of the works be carried out were not sufficiently defined.

119. The applicants submitted in reply that:

“12 … [N]o Glenquarry Park … issue arises as the order proposed is appropriately confined and the issue with the previous rectification is very narrow. … the issue with the Mooring Pole is straightforward, it simply is not on the boundary of Lot 4, and that can be easily fixed by the Respondent and by the contractors it has already engaged for that purpose.”

120. The applicants submitted that the approach the Neighbourhood Association submitted the Tribunal should adopt to the making of a work order would “have the effect of precluding parties under the Act from being able to enforce any settlement agreement where the consideration is anything other than monetary” and that “that would completely exclude those parties from the jurisdiction of the Tribunal”.

121. The applicants also submitted that the Tribunal could permit further evidence in the form of a quotation or scope of works to define the appropriate orders.

Consideration - Remedy

122. The paragraphs from the judgment of Parker J in Glenquarry Park relied upon by the Neighbourhood Association were as follows:

“111   … [O]n any view the Tribunal is not entitled to order an owners’ corporation to do things just because the Tribunal considers it desirable to do so. If, as seems to have been assumed, the justification for the order was that the Strata Corporation had not complied with its obligations under s 62, then the Tribunal’s order could go no further than the minimum necessary to comply with that obligation.

112   In the present case, the Tribunal did not ask itself what needed to be done so as to order to achieve a minimal compliance with s 62(1) and then frame orders accordingly. In my view this means that there was no proper statutory foundation for the orders.

113   Furthermore, the orders are in the nature of mandatory injunctions. Such orders can be enforced (indirectly, under NCAT: Civil and Administrative Tribunal Act, s 73) by way of contempt. It is unacceptable that the recipient of the order should be in any doubt as to what is required. In my view, for the Tribunal to make an order giving rise to such a doubt is itself an error of law.

114   An adjudicator, and on appeal, the Tribunal, may have power to make an order that an owners’ corporation carry out a defined repair in order to comply with its obligation under SSMA s 62. But the orders made in this case have been made in a form which takes them outside the limits of any such power. In truth, the orders are nothing more than a vague “wish list” from Ms Hegyesi. They should not have been made and must be set aside.”

123. I do not consider that the considerations expressed by Parker J prevent the Tribunal fashioning an appropriate order in this case. The appropriate order would be that:

The Neighbourhood Association is to retain appropriately qualified and competent contractors to remove the mooring pole installed within the boundary of Lot 4 in Deposited Plan No 286150 and re-install it, or a pole of equivalent standard and dimensions, on the boundary between Lots 3 and 4, west of the location of the pole removed in 2021, and as close as practicable to that location.

124. There is no obvious reason why an order in those terms should not be sufficiently specific that the Neighbourhood Association (and its contractors) will know what is required.

125. Although Mr Lakey gave evidence that there was the possibility that a tree stump on the river bed might prevent the pole being installed in a particular location, he did not suggest that it was likely that such obstacles would be present at all points on the boundary between Lots 3 and 4 so as to prevent an order in the above terms from being complied with.

126. The evidence, referred to in the Neighbourhood Association’s submissions at para 37.f, concerning the need for development consent or the approval of the Community Association of which the Neighbourhood Association forms a part, related, as I understand it, to proposals for work on other mooring poles which the Neighbourhood Association hoped to carry out at the same time as work on the pole on Lot 4 - so as to make maximum use of the substantial establishment and disestablishment costs which will apparently be incurred to bring the necessary machinery to the site and take it away after work has been completed. There is no evidence before me which directly suggests that the consent of any other person or body will be necessary to place the pole on the boundary between Lots 3 and 4. Given that what is involved is the replacement of a pre-existing pole, it seems very unlikely that such consent would be required. To the extent that a Council building permit may be required, as referred to in an email from Mr Stewart to the applicants dated 15 December 2020, there is no evidence to suggest there might be any difficulty in that regard, and it may be noted that there is no reference to the obtaining of a building permit in the Deed, executed after that email.

127. I will allow three months for the completion of the work required by the order. The applicants had sought an order requiring the work to be completed within 14 days. That is clearly an unreasonably short time. The evidence discloses that the task of moving the pole will require the establishment (that is bringing to the site) and disestablishment of heavy machinery. It is not reasonable to assume that such machinery would be immediately available.

128. I do not consider it appropriate to allow the applicants to lead further evidence either to provide a more detailed scope of works for the rectification of the pole or to establish the quantum of any damages, whether by reference to the cost of rectification, the consequences of the mooring not being available for use (assuming that were to be established, which I have not found it necessary to determine), or diminution in the value of Lot 4 if the mooring pole is not moved. The parties were required to file their documentation in advance of the hearing. I am not persuaded that the applicants, properly advised, could not have been aware of the need (or desirability) to lead evidence of that nature.

129. The Tribunal generally holds parties to the case they bring to the hearing, and I see no reason to depart from that course in this case.

Costs

130. Both parties indicated that, depending on the outcome of the proceedings, they would seek an order for costs of the proceedings. The parties agreed at the hearing that the issue of costs could be determined on the basis of written submissions and without a further hearing and I will make orders providing for the parties to file submissions in respect of costs, if so advised.

131. I note that it does not appear that the amount in issue in the proceedings exceeded $30,000. In those circumstances, s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) requires that there be special circumstances before I might make an order as to costs.

132. In circumstances where both parties have been successful in some degree and, although I have not heard submissions on this point, I do not see that either party could be said to have maintained a position that was untenable, my preliminary view is that there are not special circumstances and there should be no order as to costs. However, as the parties have sought the opportunity to make submissions, I will allow either party to make an application for costs if so advised, and allow for the exchange of submissions if such an application is made.

orders

133. My orders are:

1. Neighbourhood Association DP No 286150 is to retain appropriately qualified and competent contractors to remove the mooring pole installed within the boundary of Lot 4 in Deposited Plan No 286150 and re-install it, or a pole of equivalent standard and dimensions, on the boundary between Lots 3 and 4, west of the location of the pole removed in 2021, and as close as practicable to that location.

2. The work required by order (1) above is to be completed within three months of the date of these orders.

3. The application is otherwise dismissed.

4. Within 14 days of the date of publication of these orders either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question of costs.

5. If either party files an application in accordance with order (4), the other party may within a further 14 days file and serve upon the party which filed the application submissions in response, not exceeding five pages, and any further evidence relevant to the question of costs.

6. Unless a party files an application in accordance with order (4) above, there will be no order in relation to the costs of the proceedings.

**********

Endnote

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

Registrar

Decision last updated: 29 May 2025