James v The Owners - Strata Plan No 11478; The Owners - Strata Plan No 11478 v James

[2016] NSWSC 1558

Supreme Court

New South Wales

Medium Neutral Citation:

James v The Owners – Strata Plan No 11478; The Owners – Strata Plan No 11478 v James [2016] NSWSC 1558

Hearing dates:

16-19, 23-26 May, 28 June and 22 August 2016

Date of orders:

03 November 2016

Decision date:

03 November 2016

Jurisdiction:

Equity

Before:

Darke J

Decision:

Claims of lot owner dismissed. Owners Corporation entitled to recover contributions to strata levies.

Catchwords:

REAL PROPERTY – strata title – management and control – strata managing agent appointed to exercise all the functions of an owners corporation – whether strata managing agent owed duty of care to individual lot owners to exercise reasonable care so as to prevent economic or financial loss – whether strata managing agent negligent in carrying on functions of Owners Corporation – whether alleged negligence caused loss to plaintiff

REAL PROPERTY – strata title – management and control – oppression and fraud on the minority – whether scope of powers conferred under Strata Schemes Management Act 1996 (NSW) s 162(1)(a) limited by reasons for appointment – whether powers exercised bona fide for proper purposes – whether exercise of powers of Owners Corporation operated oppressively towards or amounted to fraud on the minority against plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B
Strata Schemes Management Act 1996 (NSW), ss 52, 61, 62, 65A, 75, 76, 78, 79(2), 138(1), 148(1), 149, 153, 162, 177, 183(1)

Cases Cited:

Brookfield Multiplex Limited v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Dare v Pulham (1982) 148 CLR 658
Houghton v Immer (No 155) Pty Limited (1997) 44 NSWLR 46
James v The Owners Strata Plan 11478 [2014] NSWSC 337
James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590
McDonough v Strata Plan No 57504 [2014] NSWSC 1708; (2015) 17 BPR 33,573
Owners – Strata Plan No 43551 v Walter Construction Group Limited (2004) 62 NSWLR 169; [2004] NSWCA 429
Owners Strata Plan 50276 v Thoo [2013] NSWCA 270; (2013) 17 BPR 33,789
Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449; [2005] NSWCA 246
Tan v The Owners Strata Plan No 22014 [2015] NSWSC 71
The Owners – Strata Plan 5709 v Andrews [2009] NSWCA 189
The Owners – Strata Plan No 61288 v Brookfield Australia Investments Limited (2013) 85 NSWLR 479; [2013] NSWCA 317
The Owners Strata Plan No 57164 v Yau [2016] NSWSC 1056; (2016) 18 BPR 36,095
Thoo v The Owners – Strata Plan 50276 [2011] NSWSC 657
Young v Owners – Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135

Category:

Principal judgment

Parties:

2014/37203:
Jennifer Elizabeth James (Plaintiff)
The Owners – Strata Plan No 11478 (First Defendant)
Robert Anderson (Second Defendant)
Advanced Community Management Pty Limited (Third Defendant)

  2014/181511:
The Owners – Strata Plan No 11478 (Plaintiff)
Jennifer Elizabeth James (First Defendant)
Howard Barker (Second Defendant)

Representation:

Counsel:
2014/37203:
In person (Plaintiff)
Mr C P O’Neill (First Defendant)
Mr S A Adair (Second and Third Defendants)

 

2014/181511:
Mr C P O’Neill (Plaintiff)
In person (First Defendant)

 

Solicitors:
2014/37203:
Swaab Attorneys (First Defendant)
Sparke Helmore Lawyers (Second and Third Defendants)

  2014/181511:
Swaab Attorneys (Plaintiff)

File Number(s):

2014/37203; 2014/181511

Publication restriction:

None

Judgment

Introduction

1. There are two proceedings before the Court (2014/37203 and 2014/181511). The proceedings concern Strata Plan 11478, which is the strata scheme for a building in Kenneth Street, Tamarama (sometimes referred to as Earls Court). The rear of the building provides views over the ocean.

2. The building contains six units over three levels. Units 1 and 2 are on the lower level, units 3 and 4 are on the middle level, and units 5 and 6 are on the top level. There was a timber balcony attached to the rear of lot 4. The lot numbers in the strata scheme correspond to the unit numbers in the building.

3. The aggregate unit entitlement in the strata scheme is 100. Each of lots 3, 4, 5 and 6 have a unit entitlement of 20. Lots 1 and 2 each have a unit entitlement of 10.

4. Ms James is the plaintiff in the first of the proceedings. She is a joint owner of lot 3. She has lived in unit 3 over many years since 1988, although not continuously. She has not lived in the unit since about August 2012. The unit is currently leased to a tenant.

5. By her Amended Statement of Claim, Ms James makes various allegations concerning the conduct and management of the strata scheme since February 2009. Broadly, the allegations are of negligence, oppression and fraud on the minority. Ms James claims that the wrongful conduct has caused her to suffer financial loss, primarily in that she has been subjected to strata levies which should not have been imposed at all, or which are excessive in amount. Ms James sues the Owners Corporation as first defendant, Mr Robert Anderson as second defendant, and Advanced Community Management Pty Limited (“ACM”) as third defendant. ACM is a licensed residential and commercial strata management company; Mr Anderson is its sole director.

6. On 11 February 2009 ACM was appointed by order of the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) pursuant to s 162 of the Strata Schemes Management Act 1996 (NSW) (“the Act”) as a strata managing agent (for 12 months commencing on 20 February 2009) to exercise all the functions of the Owners Corporation, including all the functions of the Chairperson, Secretary, Treasurer and Executive Committee of the Owners Corporation. Through successive orders made by the Tribunal, ACM, and for a time Mr Anderson himself, held the position of strata managing agent with such functions until late October 2013. ACM thereafter continued as a strata managing agent of the strata scheme pursuant to agreements with the Owners Corporation, but without the functions conferred by the orders made under s 162 of the Act.

7. In the second of the two proceedings before the Court, the Owners Corporation sues Ms James and her co-owner Mr Howard Barker to recover contributions to strata levies it claims are due and payable. Ms James raises the matters she alleges in the first proceedings as part of her defence to the claim for unpaid levies. Mr Barker has not filed a defence and has taken no active part in the proceedings.

The hearing

8. Ms James appeared for herself at the hearing. Mr O’Neill of counsel appeared for the Owners Corporation, and Mr Adair of counsel appeared for Mr Anderson and ACM.

9. Ms James is a solicitor with a current practising certificate. She had been represented in the first of the proceedings by a firm of solicitors (Allsop Glover) and counsel until the conclusion of a mediation that was conducted almost three weeks before the scheduled hearing date. Ms James had represented herself in the second of the proceedings.

10. The Court declined a number of adjournment applications made by Ms James both prior to the commencement of the hearing and during the hearing itself. These applications were in the most part based on the contention that she was not in a fit mental or psychological state to properly conduct her case. It is undoubtedly the case that Ms James laboured under a great deal of stress and anxiety associated with the litigation, in which she is clearly very emotionally involved. Whilst the stress and emotional involvement obviously affected the manner in which Ms James presented her case, she plainly possessed a good knowledge of the facts and events concerning the strata scheme, and showed herself capable at times of conducting effective cross-examination and elucidating arguments.

11. In recognition of the stress and emotional involvement and her status as a litigant in person (albeit a solicitor), Ms James was afforded a great deal of latitude in the conduct of her case, including in relation to the cross-examination of witnesses and the giving of time for the making of submissions. Unfortunately, this led to some unfairness to witnesses and prolonged the hearing (which had been set down with an estimate of up to 6 days, but ultimately took 10 days).

12. The case advanced by Ms James during the course of the hearing was at times difficult to follow and appeared to diverge from the claims raised in her Amended Statement of Claim. However, there was no agreement or acceptance that the litigation be fought otherwise than on the issues raised on the pleadings. I have therefore proceeded in accordance with the principle that the relief available to a party ought to be founded on the pleadings (Dare v Pulham (1982) 148 CLR 658 at 664).

13. Three witnesses gave oral evidence – Ms James, Mr Anderson and Mr Domazetovski, who was called by the second and third defendants to give evidence as to strata management practices.

14. This is not a case where conflicts between the accounts of the witnesses loom large. The relevant evidence is largely documentary. Nevertheless, I will briefly record my observations of the witnesses who were called.

15. Mr O’Neill submitted that, although Ms James at times had difficulty containing her emotions, her general demeanour was combative. He submitted that her answers were prolix, largely irrelevant and evasive, and that even though she understood the questions asked of her she often took the opportunity to digress into lengthy dissertations. Mr Adair similarly submitted that from the outset Ms James sought to respond to questioning under cross-examination by making speeches designed to advance her case. Even making every allowance in Ms James’ favour on account of the difficult situation she faced in presenting her own case, I broadly accept those submissions, and regard Ms James as an unsatisfactory witness.

16. Ms James frequently failed to give succinct answers (when succinct answers were all that was called for), but instead embarked upon lengthy speeches in the nature of submissions, which strayed from the point of the question. These lengthy answers persisted despite numerous directions that only answers pertinent to the question be given. Ms James seemed intent on circumventing the cross-examination, although there were some occasions when she made concessions.

17. In these circumstances, I do not think that any real weight can be placed upon Ms James’ evidence. I would only be prepared to accept it to the extent that it is against interest or corroborated by reliable evidence such as records made or communications sent at the time of the relevant event.

18. Mr Anderson was cross-examined at length. He was subjected during the course of the cross-examination to questioning which was to a degree unfair. Such questioning was tolerated in the circumstances explained above. Despite these difficult circumstances, Mr Anderson appeared on the whole to make a concerted effort to understand the questions asked of him and to give accurate answers to them. Mr Anderson was prepared to make concessions, and on occasions was astute to correct mistakes in his testimony. Mr Anderson exhibited considerable, but not inexhaustible, patience, even in the face of hostile questioning.

19. Overall, I was favourably impressed by Mr Anderson as a witness. I generally accept his evidence as truthful, and accurate save to the extent that it may differ from reliable contemporaneous documents. I do not accept the submission made by Ms James that Mr Anderson was a witness without credit.

20. Mr Domazetovski was also cross-examined at length. He, too, faced a deal of questioning which was to a degree unfair. Ms James was effective in establishing that Mr Domazetovski and Mr Anderson had both professional and personal involvements with each other over a number of years, thereby calling into question whether Mr Domazetovski was in a position to give truly independent opinions. Ms James also cross-examined Mr Domazetovski concerning the extent of his relevant knowledge and experience, as well as to various aspects concerning the conduct of the strata scheme.

21. It is undesirable (although sometimes unavoidable) that expert witnesses are called in circumstances where there is a more than minimal degree of association between the witness and the person whose conduct is the subject of the expert opinions to be offered. Mr Domazetovski’s evidence needs to be considered in that light. However, I formed the impression that, despite the connection that existed between Mr Anderson and himself, Mr Domazetovski made a conscientious effort to provide his views objectively and honestly. Further, I consider that he had relevant knowledge and experience of strata management sufficient to enable him to express opinions concerning strata management practices.

22. Ultimately, I did not find it necessary to deal with the matter to which the evidence of Mr Domazetovski was principally directed – namely, whether Mr Anderson acted in a manner that was widely accepted by peer professional opinion as competent professional practice.

The appointment of ACM

23. The initial appointment of ACM in February 2009 was made on the application of Ms James, who complained that the Owners Corporation was in a dysfunctional state. At the same time, Ms James was successful in obtaining orders striking down by-laws 27 and 28 (which were originally made in 2002 and amended in October 2008). Those by-laws conferred privileges upon the owners of lots 6 and 5 respectively concerning the use of the common property roof space above their units.

24. Ms James’ applications were determined by Senior Member Paull of the Tribunal. The reasons for decision frequently refer to the state of conflict that existed amongst lot owners in the strata scheme. The section of the reasons directed to the question of the appointment of a strata managing agent under s 162 of the Act is in the following terms:

7. A strata managing agent should be appointed under s 162(3A)(a) of

the SSM Act as the strata scheme is not functioning satisfactorily.

I have already described the two camps that prevail within the strata scheme which see Mr Gibbons [sic – Mr Gibson], Mr Dunkley and Mr Mitchell (the only office bearers and representatives of the executive committee) pitted against the applicant and Mr Mayo and Ms Murray.

I have already outlined the cost of the repairs that are needed to the roof and the building in general and which remain in abeyance.

I have also found that the division that exists between these two camps has contributed to the divergence of views as to how the 2002 by-laws and the 2008 amending by-laws provide for the repair and maintenance of the common property roof which, in turn, has resulted in the roof repairs becoming inextricably linked with and ultimately frustrated by those by-laws.

What is more, as noted above, during the 2008 year the owners corporation convened and thus has had to bear the cost of some six EGMs which have included issues relating to the repairs and the 2002 and 2008 amending by-laws.

It is also of concern that in the period 2007-2008, approximately 12 applications were made under the SSM Act in relation to this strata scheme with the resulting cost and tension that naturally flows from this process.

In having regard to the costs and expenses that the owners corporation is being asked to bear, it was also worrying that as at the date of my decision the owners corporation was engaging three different firms of lawyers.

Mr Robinson, solicitor, conducted the matter before me on the owners corporation's behalf.

Mr llkin, solicitor, is advising the owners corporation on the procedures involved in obtaining a $1 million loan facility to address the cost of repairs that the owners corporation faces and the fact (as Mr Dunkley stated in evidence) that there are continual problems with lot owners not paying levies on time.

Muellers, solicitors, are defending the owners corporation against debt recovery proceedings by the engineer who, until recently, was advising the owners corporation on the building repair programme.

I also considered as very serious, the fact that the owners of the six lots that comprise the scheme seem incapable of sitting together in a room for long enough to conduct a meeting in a way that produces any productive outcome for the strata scheme. What emerges from the minutes of the meetings in 2008 and from the evidence of the witnesses is conflicting views as to whether participants have rightfully adjourned or continued the meetings; disagreement as to the outcomes of what was resolved at the meetings; and lot owners recording the proceedings, attending with legal representatives and threats to call the police. The April 2008 and the October 2008 meetings are just two examples of this state of affairs.

In light of the above I was satisfied that it was appropriate to make an order appointing a strata managing agent to carry out all the functions of the owners corporation.

25. The order made by the Tribunal was in the following terms:

Pursuant to s 162(1) of the Strata Schemes Management Act1996 I appoint Advanced Community Management Pty Limited Licence No 1415584 to be the strata manager of SP 11478 for a period of 12 months commencing on 20 February 2009 to carry out all the function of the Owners Corporation of SP 11478 including the functions of the chair, secretary, treasurer and executive committee.

The conduct of the strata scheme

26. Following the appointment of ACM, Mr Anderson reviewed at least some of the records of the strata scheme, had discussions with lot owners, and inspected the building. It was apparent to Mr Anderson that the Owners Corporation had become dysfunctional and was unable to properly address a number of issues including the state of disrepair of the building.

27. Mr Anderson obtained a copy of a Building Condition Report that had been prepared by RHM Consultants Pty Limited (“RHM”) for the Owners Corporation in December 2008. The condition report includes the following:

In accordance with your email instructions we attended the above property to examine the general condition of the complex including undertaking destructive investigation of the external walls. Our Max Moretti and Bruce Hodsdon conducted the inspection on Tuesday 25 November 2008 in the presence of the owners/occupiers of the respective units.

1.0 Introduction

The property in question is a 2-3 storey building consisting of six residential units constructed on a sloping block of land. Units 3-6 are accessed via an internal common foyer with an entry on the northern side of the building. Units 1 & 2 are accessed from the rear (southern side of the building). A reinforced concrete staircase and a timber balcony are also located on the southern side of the building.

The building is constructed with a combination of internally reinforced concrete floor slabs and timber floors supported by load bearing cavity brick walls. The external facades of the building feature a rendered finish, timber-framed windows and balcony doors. The building’s roof is pitched and clad with roof tiles. Roof drainage consists of eaves mounted gutters connected to the building’s stormwater drainage system via metal downpipes. The roof void has been converted into extra space for the top floor units.

The internal areas of the building feature rendered masonry walls and plasterboard ceiling linings.

We are advised that the complex is approximately eighty to ninety years old and that the roof was replaced approximately thirty years ago.

…

3.0   Comments & recommendations

We provide the following comments with regards to the condition of the building’s structural and non-structural elements.

3.1   External Brickwork

The brickwork to the external cavity walls appeared in fair condition. At the time of the inspection, it was noted that the mortar joints to the external skin are eroding where the destructive investigations were undertaken. We believe these eroding joints are contributing to the blocking of the cavity flashings (as discussed in Section 3.2). We also observed that the brick ties had corroded and in several cases failed.

All the issues can be attributed to normal age related deterioration of the building, typical of a building located within an aggressive marine environment. We note however, that we have concerns regarding the structural integrity of the walls due to the extensive deterioration sustained. We recommend that remedial works should be undertaken in the immediate future to avoid further deterioration.

...

3.2   Dampness and water penetration

…

We attribute the observed instances of water penetration to failed, blocked or poorly detailed cavity flashings throughout the complex. This has been exacerbated by the age-related deterioration of the windows allowing excessive amounts of water into the cavity and eroded mortar joints to the walls.

…

Due to the potential for the moisture to damage the structural elements of the building and surface finishes, we recommend that all instances of water penetration are rectified as soon as possible.

…

3.3   External render

The external render has sustained a degree of deterioration related to age and the location of the property and is in a dilapidated condition. Extensive areas of drummy and delaminating render were evident throughout the complex, especially on the western elevation.

…

As outlined above, we recommend that the repair of the render be undertaken in conjunction with the brickwork repairs.

…

3.5   Rooftop

The pitched, tiled roof appears in reasonable condition, given the building’s age and location. We note that the ridge and hip tiles have been recently repointed. However, the eaves and fascias have sustained a significant degree of deterioration and as a result, several tiles have become dislodged and isolated sections of the eaves mounted gutter are also missing.

The deterioration of the roof elements is attributable to a lack of regular maintenance (regular painting) and should be addressed in the short-term in order to minimise any safety issues for the owners and occupants, i.e. falling debris.

…

3.6   Rear concrete stairs

We observed evidence of concrete spalling and general age related deterioration of the rear (southern) stairs to the complex. The concrete spalling mainly affects the slab edges and soffits of the reinforced concrete stairs and landings. The tubular steel balustrades to the stairs have also sustained a significant degree of corrosion. Furthermore, they do not comply with the current requirements of the Building Code of Australia.

…

Although not generally a problematic process, repair of spalling concrete can be a costly exercise, especially when access to the affected areas is considered. In this instance, given the extent of the works required, it may prove to be either necessary or cost effective to replace the stairs rather than repair. We recommend that the repair of concrete spalling is undertaken in conjunction with painting of the building to minimise the preliminary expenses that would otherwise be borne by the Owners Corporation in the event that the works were staged.

Although the balustrades do not comply with the current requirements of the Building Code of Australia (BCA), the Owners Corporation is not bound to replace the balustrades (unless an order is issued by council in the future), which would have complied with the requirements of local authorities at the time of construction. Consequently, we recommend that in the event repair of the balustrades is significantly more cost effective, the original balustrades remain in-situ. Bearing in mind a risk will remain to occupants, visitors and in particular, young children.

As an alternative, the Owners Corporation may wish to replace the balustrades with new (complying) balustrades rather than retain them. Subsequently, it may be worth obtaining quotations for replacement for the purpose of future budgeting, especially if the stairs are to be replaced rather than repaired.

…

3.8   Timber framed windows

The complex features timber-framed windows fitted with float glass panes. The existing windows are have sustained a degree of age related deterioration. A large number of the windows have sustained a dry rot in the timber framing elements and we believe that many of the existing windows have reached the end of their serviceable lifespan.

…

The deterioration of the windows is attributable to a lack of regular maintenance (regular painting) and should be addressed in the short-term in order to minimise any safety issues associated with the windows.

Given the general condition of the windows, we believe that the best course of action would be to replace the existing timber windows with new powder coated aluminium equivalents. It is our opinion that repairs to the existing windows may not be a cost effective option given the extensive works required. These works will provide greater weather resistance to the building and safety to the occupants.

3.9   Timber balcony and balustrades

On the southern elevation of the building, Unit 4 has a timber balcony enclosed with a timber handrail. At the time of the inspection, we noted that the timber balcony and balustrade had sustained a degree of age related deterioration and corrosion of the fasteners was evident throughout.

We attribute the deterioration of the timber deck to a lack of regular maintenance. Although we observed evidence of normal age related deterioration, it is our opinion that the existing deck can provide adequate service for a number of years provided periodic maintenance and repair is undertaken as required. We did not observe any obvious signs of wood rot, however when repairs are undertaken, all elements should be checked and if necessary replaced.

…

3.10   Painting

…

Given the generally dilapidated state of the external facades, we believe that the building is due for repainting in the near future. Any painting works should be conducted subsequent to the rectification of any issues with the substrate (such as concrete spalling repairs or brickwork and render repairs).

…

4.0   Conclusion

Generally, we believe the building is in reasonable condition, given its age and location. However, there are a number of important issues that require attention by the Owners Corporation. These include, but are not limited to the following (in order of priority):

Brickwork repairs throughout the facades;

Repair of the roof, eaves, fascias and gutters;

Render repairs throughout the facades;

Repair of the failed cavity flashings/rectification of water penetration;

Repair of the concrete spalling to the rear stairs;

Repair of water penetration (stormwater) and corroding structural steel in the subfloor area;

The replacement of the timber-framed windows;

External painting;

Repair of boundary fences.

The Owners Corporation should consider undertaking all the recommended façade works (brickwork repair, render repairs, cavity flashing works, concrete spalling repairs, window replacement and painting) under one contract to minimise the duplication of preliminary costs that would be borne by the Owners Corporation in the event the works were staged.

Because remedial building works of a complex and costly nature may be required, we recommend the Owners Corporation prepare a specification for the remedial works and issue to qualified remedial building contractors for competitive tender.

28. Mr Anderson regarded the observations made by RHM as consistent with his own initial impression of the building. Mr Anderson deposed that it was apparent to him that urgent remedial work needed to be performed.

29. Throughout the period when ACM (or Mr Anderson) was the strata manager with powers conferred pursuant to s 162 of the Act, meetings of the Owners Corporation were convened. Lot owners were given notice of, and invited to attend, these meetings. The minutes of the meetings record that lot owners frequently attended and participated in discussions at such meetings. Of course, given that ACM (or Mr Anderson) was empowered to exercise all of the functions of the Owners Corporation, including those that would ordinarily be exercised in general meetings (see Tan v The Owners Strata Plan No 22014 [2015] NSWSC 71 at [11]), the lot owners were not entitled to vote on resolutions at these meetings.

30. The minutes of the various meetings were in evidence. I accept that these documents provide a generally accurate summary of what occurred at the meetings.

31. The first meeting of the Owners Corporation that was convened by ACM was an Extraordinary General Meeting (EGM) held on 16 March 2009. The minutes of the meeting record that it was resolved that the Owners Corporation would continue to engage RHM, including to obtain and analyse competitive quotes for building rectification works. The minutes further record that there was discussion at the meeting about various aspects of the building works. Part of the discussion concerned the question of how to finance the works. The minutes record that the dominant view of owners was to opt for a combination of special levy and finance. The minutes record that it was resolved that the strata scheme be registered for GST as projected levies would exceed the $75,000 threshold.

32. The minutes of the 16 March 2009 EGM include the following:

Strata Manager advised meeting that he had received a copy of letter from Waverley Council advising owners that a DA for balconies had been lodged and submissions are open for 14 days from 11 March 2009. The letter and attachments were tabled. There was a long discussion amongst owners about the decision submitted, the current by-law in place about balconies and the architecture fees. Whilst all owners present agreed that the addition of balconies was good in theory, there was less agreement on the actual design.

Some invoices in relation to the costs of that development application were tabled at the meeting. It appears that Mr Anderson indicated that invoices for $516.62 (Waverley Council) and $1,650.00 (Simmons Architects) would be processed, but that an invoice for $6,059 (Simmons Architects) would not be processed. The first of the Simmons Architects invoices was addressed to the Owners Corporation.

33. The development application (DA 112/09) had been lodged by Mr Dunkley on 9 March 2009. He lived in Unit 6 with his wife, who was the owner of the unit. The development application, which was dated 19 February 2009 and bore the seal of the Owners Corporation as consenting owner, was lodged by Mr Dunkley in accordance with what he claimed to be a resolution of the Owners Corporation made on 1 August 2008. That later became a matter of dispute. Ultimately, on 9 April 2010, Ms James obtained an order from the Tribunal requiring ACM to notify Waverley Council (“the Council”) that the seal of the Owners Corporation had not been affixed with the approval of the Owners Corporation. ACM so notified the Council on 13 April 2010.

34. I note, however, that the minutes of the EGM held on 1 August 2008 record that an ordinary resolution was made that the Owners Corporation authorised the submission of a development application to Council for six 3m balconies on the southern elevation for units 1-6 and authorised the application of the Owners Corporation corporate seal.

35. The Annual General Meeting (AGM) of the Owners Corporation was held on 4 May 2009. Resolutions were made for contributions to the administrative fund and to the sinking fund. The minutes record that it was also resolved that a special levy of $275,000 (including GST) be struck for part payment of major building rectification works. The minutes further record that a special resolution was made pursuant to s 62(3) of the Act to the effect that it was inappropriate to maintain, renew, replace or repair the common laundry and that the laundry would therefore be demolished. The laundry was located in the rear yard of the building, near to Unit 2.

36. It appears that various motions submitted by Ms Murray (of Lot 2) and Ms James (of Lot 3) were considered at the AGM. A motion (submitted by Ms Murray) that the development application lodged by Mr Dunkley be withdrawn, and that a new set of plans be lodged at Council in the managing agent’s name, was not accepted.

37. At an EGM held on 15 June 2009 it was resolved to accept a quote from Sydney Remedial Builders of $671,275 (including GST) to carry out the rectification works to the building. Mr Hodsdon from RHM addressed the meeting concerning the proposed works. It was resolved to engage RHM to prepare contracts and to supervise the works. It was also resolved that the Owners Corporation would enter into a loan contract with Lannock Capital Pty Limited for credit up to a maximum of $440,000, to fund the rectification works. A special levy of $493,341 (including GST) was struck for the purpose of repaying the loan plus interest.

38. The minutes record that a resolution under s 62(3) of the Act in relation to the rear stairs, in similar terms to the earlier resolution concerning the laundry, was not made. It is recorded that Ms James informed the meeting that she had not changed her view about rear stair access being a condition of any balcony consent. It further appears that Mr Anderson stated, in effect, that unless owners “had a change of heart in the next two months to open the way to remove the stairs”, the rear stairs would be repaired.

39. On 15 June 2009 ACM sent a letter to Mr Dunkley in relation to his development application. The letter included the following:

We now realise, albeit somewhat belatedly, that you as an owner are the applicant, and the owners corporation have affixed the seal to the DA. This is different in degree to the owners corporation submitting a DA in its name. Indeed correspondence from Waverley Council bears out this view.

We further note the seal was affixed some time before our office received the scheme’s books and records.

We believe it inappropriate for an individual owner to be applying for balconies to the six apartments. However, in effect that it is what is occurring.

…

As the DA is an individual DA the owners corporation will not be reimbursing any out of pocket expenses incurred for the Architect.

Similarly we mistakenly reimbursed the expense of lodging the DA and the owners corporation is entitled to recover those fees.

It appears that those fees (totalling $2,166.62) were never recovered.

40. At an EGM held on 10 July 2009 it was resolved to rescind the acceptance of the Sydney Remedial Builders quote and instead accept a quote from PGM Group Pty Limited (“PGM”) of $653,110.50 (including GST) for the building rectification works. At an EGM held on 24 August 2009 it was resolved to accept a variation submitted by PGM and to enter into a contract with PGM for $709,187.60 (including GST). The variation, of $47,866 plus GST, concerned the replacement of roof titles and sarking. It appears that at the same time the maximum amount of credit available under the loan from Lannock Capital Pty Limited was increased to $477,000.

41. The Council issued a consent in respect of Mr Dunkley’s development application on 5 August 2009. The consent was a deferred commencement consent which was not to operate until certain matters occurred: the submission of amended plans for the rear exit stairs so as to comply with the deemed to satisfy provisions of the Building Code of Australia, and the submission of a fire safety upgrading report recommending works in order to bring the existing building into conformity with the Building Code of Australia in relation to fire safety.

42. On 21 August 2009 ACM sent a letter to lot owners to report upon the progress of the rectification works. The letter included the following:

You may recall after the General Meeting of 15 June 2009, RHM requested from SRB & PGM their best price. PGM ended up with the cheapest quotation for the works and it has been accepted.

Bruce Bentley solicitor has reviewed the contracts and the appropriate changes are now incorporated into the contract. The changes were accepted by PGM.

We were requested by Jennifer Jones [sic] to again review what works are included and to consider pulling the whole internal wall down and reconstructing it. RHM, your chosen engineers have again confirmed they would have expected severe cracking on the internal wall if that was required. But simply the evidence was not there. However, it was noted that there is flexibility during the upgrade works to address issues not seen in the previous inspections.

We were requested to review the provisions for replacing just the perished roof tiles given the roof is now reported to be approximately 30 years old. Also, to take the opportunity to replace the perished sarking and to carry out this work scaffolding is available thereby taking advantage of the savings.

The engineers were consulted and obtained a quote for these works with a net price of $47,866 + GST.

The life expectancy of the new tiles according to the engineers would be then 40-50 years. If the cost is averaged out over that period it is around $1,000 per annum and even less per owner depending on your [unit entitlement]. Therefore, I have instructed the engineers to arrange for this variation to the contract to be incorporated into the final contract.

…

It is in everyone’s interest that levies are paid on time and in full. As previously advised we have no option but to refer those owners who have not paid their contributions straight to a debt collector. This is to ensure cash flow is available.

A loan will be taken out through Lannock Finance to fund upfront balance required not already covered by levies. Over the next three years every quarter, commencing 1 October 2009, a levy has been struck to pay back that loan plus interest. Owners now have certainty that the works will proceed. Lannock Finance has agreed to loan the additional $47,000 required for the roof works. The maximum funds to be made available is $477,000.

There is no provision to include any balcony installations in these works. Accordingly, the rear stairs will be repaired under this contract.

Unless and until all owners can agree and compromise on individual differences of opinion regarding the balconies, this office will not be able to assist you in this matter.

43. The remedial building works commenced on 15 October 2009. It is apparent from the inspection reports prepared by RHM that the project suffered considerable delays. The bulk of the works had been completed by July 2011, although some work, including defect rectification, seems to have continued until early in 2012. Mr Hodsdon from RHM provided updates on the progress of the works at meetings of the Owners Corporation from time to time.

44. At the EGM held on 23 December 2009 Mr Hodsdon reported that additional remedial work was required on the wall in the southwestern area of the building. The need for such work had been identified when the render had been removed from that section of the wall and a large area of the brickwork had collapsed. It was resolved at the meeting to accept an updated quote from PGM (of $89,925 plus GST) to carry out such work. It was further resolved to enter into a loan contract with Lannock Capital Pty Limited to finance the additional work. A special levy of $105,000 (including GST) was struck for the purpose of repaying that loan plus interest.

45. On 28 December 2009 Mr Dunkley sent an email to Mr Anderson concerning DA 112/09. The email included the following:

Revised plans for DA 112/09 incorporating a number of the fire upgrades are attached.

Council have advised if we do not proceed on DA 112/09 they will issue a fire order.

The construction of compliant rear stairs to all areas is an essential fire safety upgrade required by council.

The proposed non-compliant rear stair repairs do not satisfy fire safety requirements.

The owner corporation has a responsibility to provide essential fire safety measures and safe egress from the building to protect occupants.

While lots 2 and 3 disagree with the proposed new stairs and have refused to enter mediation on their design, ACM and RHM as appointed representatives of the owners corporation have a regulatory obligation and duty of care to act on the BCA report and council consent directive in a timely manner.

I note the extension of all balconies to 3.8m (if agreed by all owners and permitted by council) would allow the stair configuration to be reversed, reducing impact on side views as per the attached sketch.

Failing the acceptance of an alternate design, lots 4, 5 & 6 intend to construct balconies under stage 1 of DA 112/09 as currently approved and note the owners corporations responsibility to install the new common property stairs.

46. On 7 January 2010 ACM sent a letter in response to Mr Dunkley, which included the following:

As you know, currently there is not a fire order on the building. If there is a fire order placed on the building the scheme would be obliged to comply and carry out the required works.

Our approach would be to engage an appropriate fire consultant engineer to liaise with Council, obtain competitive quotes and oversee the works. We have successfully adopted this approach with other schemes we have managed for the last 15 years.

…

Fire orders are placed on buildings in a number of ways.

…

In Earls Court’s particular case, you have lodged a DA for balconies in your name and I understand that Council has given conditional deferred consent.

Any fire order placed on the scheme would be as a direct result of that DA being lodged and subsequent reports lodged as required as a condition of the consent.

If a fire order is placed on the scheme the cost of complying with that fire order is a cost for the owners corporation as a whole as it affects common property. The cost of compliance would be significant.

The facts remain that there is not a fire order on the scheme today. A scheme’s obligation under the Act is to repair and maintain. There is no obligation to upgrade.

It is curious that you would expect me to do something under compulsory management over and above what is required by the Act. If all owners share that view then I would be pleased to assist owners.

The owners corporation has no obligation to install new common property stairs at this stage. In fact, these issue [sic] have arisen solely from your lodgement of your DA.

Our focus continues and will continue to be in addressing the building rectification works.

The balcony issue is an unnecessary, untimely and inflammatory complication. It could and should have been dealt with at the completion of the building rectification works.

47. In a submission made to the Tribunal in January 2010, in support of an application to continue ACM’s management of the Owners Corporation, Ms James stated that “Mr Anderson is doing well with an exceedingly difficult ongoing job of ensuring that the s 62 SSMA obligations are being satisfied”.

48. On 17 February 2010 RHM sent a letter to ACM which concerned various aspects of the works including the repair of concrete elements. The letter included the following:

The Contract calls for the repair of the concrete elements throughout the complex. These are essentially the entry awning at the front of the building and the concrete fire stair at the rear of the building. The total cost allowed for these works is $87,500 plus GST. We have obtained from the contractor a quote to replace the awning and stairs for a total of $44,348 plus GST (being $40,368 for the stairs and $3,980 for the awning). This is approximately half of the budgeted repair cost.

We understand that there is some dispute amongst the owners regarding the treatment of the rear stairs. However, we also note that for the awning alone, where we anticipate at least 300L of repair (at a cost of $10,500) there will be a significant saving by replacing the element.

49. On 18 February 2010 ACM sent a letter to RHM which included the following:

We accept your advice to replace the awning and stairs which provides a saving to the scheme of $43,152 + GST, subject to your confirmation that a DA is not required for either awning or stairs.

50. Mr Anderson gave evidence that he recalled RHM advising that in their view no development application was required.

51. In April 2010 ACM turned its attention to the question of balconies. On 16 April 2010 ACM sent a letter to owners which included the following:

Given that the main task of repairing the building is progressing, it is now time to attempt again to have owners reach agreement on moving forward on balconies.

You all know the proposed balconies have given each and every one of us more than our share of angst and pain.

In the past (as I interpret it) there has been support for the construction of balconies. As recently as this week three owners: Dunkley, Murray and James confirmed that support. If it is fully supported then it is again time to attempt to reach some consensus and work out a way forward. In order to positively progress the balcony issue it seems to me a few steps are required:

Mediation

New architects to design and lodge plans

Review of the by-laws relating to balconies

Why is mediation needed? To ensure owners resolve some past differences and agree on certain matters. That individual owner issues are identified and heard, and where possible, addressed.

Presumably owners still agree balconies would add to each unit’s amenity, aspect and lifestyle of residents. For owners they would also add to the value of the property.

Attached is a profile of a mediator I would propose to engage on behalf of the scheme.

…

I would hope all six owners participate and would request you respond within the next five days and advise if you agree.

52. It appears that Mr Dunkley was not in favour of mediation. He did not accept that unanimous agreement should be required, and he requested that ACM act to resolve the issue. Ms James suggested that there be a “CTTT mediation”; it seems that she did not want to pay for a mediator. In any event, the mediation proposed by ACM did not proceed. ACM did, however, engage an architect to advise in relation to balconies. It appears that ACM took that step on the basis that it was perceived that the six owners were at least in favour of the concept of balconies.

53. ACM convened a meeting of owners on 23 June 2010. The meeting was attended by Mr Frank Spork, an architect from Frank Spork and Associates. Mr Spork addressed the meeting on the topic of balconies. The record of the meeting indicates that Mr Spork recommended larger balconies (such as 4m or 5m balconies) rather than smaller ones. He further suggested that the whole of the rear of the building be knocked down and that the balconies be a concrete structure which would tie back into the existing building fabric and stiffen the whole structure. It appears that the owners present were invited to make comments. The summary of those comments contained within the record of the meeting indicates that the owners agreed with the recommendation for larger rather than smaller balconies. The record includes the following:

Owners discussed the merits of stairs versus other options available to comply with the fire regulations. The other options included new fire rated ceilings and for the installation of sprinklers. On balance, Ms Murray expressed reservations about the stair solution and other owners expressed support for the stairs.

...

Mr Spork advised owners the formula for stairs is a 190mm riser and 250mm (minimum) for the tread and 1100mm landing top and bottom. This would give an approximate envelope of 4.2m and fit inside the balcony envelope of five or six metres.

…

Owner Murray spoke against rear stairs as they would affect her aspect more significantly than anyone else. However, in a spirit of compromise, Architect Spork will meet on site with Ms Murray and investigate alternatives, such as a possible side entrance.

…

Chairman Anderson thanked owners for their contributions and instructed Architect Spork to proceed to the drawing stage. Once the drawings are completed it will be circulated to all owners for their individual final comments and suggestions, which would be provided to Mr Spork via agent Anderson. Mr Spork would then make any necessary changes and provide a final version.

54. The record of the meeting also indicates that Ms Jane Crittenden, solicitor, addressed the meeting and advised that various by-laws made in March 1998, November 2001 and February 2002 “were defective in so much as they granted rights over the airspace but did not grant rights to construct balconies, under s 65A of the Strata Schemes Management Act”. Ms Crittenden provided a letter of advice to that effect dated 23 June 2010.

55. An EGM was held on 31 August 2010. Numerous by-laws were made pursuant to s 52 of the Act giving rights of exclusive use and enjoyment to parts of the common property to the owners of the various lots. In essence, the by-laws conferred rights in respect of parts of the common property that were already being used by lot owners for the purpose of the supply of hot water to their units. The minutes record that Mr Spork addressed the meeting and there was discussion concerning the concept plans he had produced. There were two sets of concept plans; one set included stairs from the balconies to the rear yard, and the other set did not. The owners were asked for their views about the plans and whether there was a preference for stairs or no stairs. Ms James objected to the plans. Some correspondence she had sent to Mr Anderson was tabled. (This is likely to have been her letters to Mr Anderson of 21 May 2010 and 31 August 2010). It appears that at least four owners (Ms James not being one of them) expressed a preference for no stairs. Mr Anderson stated that he would instruct Mr Spork to finalise development application drawings with no stairs. Mr Spork offered to look at Ms James’ request “for stairs to back yard just for her apartment”.

56. The balconies issue was further considered at an EGM held on 25 November 2010. Mr Spork addressed the meeting. He tabled a report of BCA Performance Pty Limited concerning fire upgrade works that may be required in order for the building to comply with the provisions of the Building Code of Australia. The view was expressed in section 1.2 of the report that providing balconies with stairs connecting the units to the rear yard would not have any effect on the extent of works needed. The minutes of the meeting record that only Ms James had a preference for balconies with stairs. It is also recorded that Ms James was asked whether she wanted stairs from her apartment to the side of the building, and that after some discussion she advised that she did not want such stairs. Mr Spork was instructed (presumably by Mr Anderson) to make final alterations to the plans and lodge a development application with Waverley Council. The minutes record that Mr Anderson asked if owners wanted to attend a mediation with Ms James; the majority view was adverse, and so mediation (which had been requested by Ms James) was declined.

57. The development application for the construction of balconies (DA 697/10) was lodged on 30 November 2010.

58. The Council gave notice of its intention to make fire safety orders in December 2010. In a letter to the Owners Corporation dated 16 December 2010 the Council stated:

Waverley Council hereby gives Notice that it intends to serve you, as the owner of the subject premises with an Order No 4 (Repair a Building), Order No 6 (Fire Safety) and Order No 13 (Bring the Building into Compliance with the Relevant Standards) pursuant to the table to Section 121B of the Environmental Planning and Assessment Act, 1979.

…

Circumstances:

The existing defective exit stairs, landings and balustrades at the rear of the existing building may cause serious injury or death to occupants of the building in the event of fire and due to unsafe access from the rear external doors of the residential units of the building.

59. In another letter to the Owners Corporation dated 16 December 2010 the Council stated:

Waverley Council hereby gives Notice that it intends to serve you, as the owner of the subject premises, with an Order No 6(a) pursuant to the table to Section 121B of the Environmental Planning and Assessment Act, 1979.

…

Circumstances:

Provisions for fire safety or fire safety awareness are not adequate to prevent fire, supress fire or prevent the spread of fire or ensure or promote the safety of persons in the event of fire.

60. On 24 December 2010 ACM wrote to the Council, stating that the Owners Corporation would appoint a fire engineer to liaise with Council regarding the proposed fire upgrade.

61. Martin & Spork Pty Limited were engaged to liaise with the Council concerning the proposed orders. It sent a letter to the Council on 4 February 2011. The letter contained the following:

We have been engaged by the owners of the above property, the Proprietors of Strata Plan 11478 to respond to Council’s “Notice of Intention to give an order under Section 121H of the EP&A Act” dated 16/12/2010 and to come to an agreement with Council over the provisions and timing of Councils proposed order.

We propose that the order be generally in the terms set out your notice, with the following amendments:

…

12. Upgrade stair balustrades: Delete this clause. The minor non-compliance of the existing main stair balustrades does not warrant the complete removal and replacement with complying balustrades. The stairs have a rise of only one storey, with a maximum potential drop of only approximately 3.0m. We contend that it is not reasonable or necessary to require full compliance with current BCA standards in these circumstances. Under the current Development Application No 697/10, there will be no secondary stairs, although I note that the recently completed interim rear replacement stairs are now fitted with compliant balustrades.

…

Period for compliance:

The six month period noted in the notice will not be sufficient to have the works designed, tenders called, contracts let, and the works completed. We propose that the period for compliance be 12 months from the date of the final order.

We note that there is some “overlap” between the works which will be required under the Fire safety Order, and those proposed under the current DA No 697/10, and the works would most efficiently be carried out at the same time. Please confirm that this Fire safety Order, once issued will include for any works that may arise from the construction works proposed under DA 697/10, currently before Council.

62. In early May 2011, ACM received a fire safety audit report prepared by Exova Warringtonfire Aus Pty Limited (“Exova”). The Exova report was sent to the Council in connection with DA 697/10. The Overview section of the report is in the following terms:

Exova Warringtonfire Aus Pty Limited has been engaged by Strata Plan 11478, care of Advanced Community Management Pty Limited, to undertake a fire safety audit for the existing residential flat building, highlighting any significant deficiencies with the fire safety related provisions with the Building Code of Australia 2010 (BCA), to provide a “reasonable” level of risk acceptable to the client. The subject building is located at 7 Kenneth Street, Tamarama, NSW.

Recommendations of this fire safety audit report are presented in section 5.

The most significant BCA non-compliance is that the existing floor structures between sole-occupancy units do not achieve a tested fire resistance level to mitigate the risk of fire spread between units. It is recommended that either a ceiling achieving either an FRL of 60/60/60 or a 1-hour resistance to the incipient spread of fire be provided to the underside of each floor, unless a residential sprinkler system is installed throughout the building in accordance with AS2118.4-1995. Note also that part of the outcomes of this report, the stairway to the rear of the building that is to be constructed to replace the existing defective stairway that [sic] is only required to serve the lowest floor, with the upper two storeys being provided with egress via the existing stairway at the front of the building that discharges directly to Kenneth Street.

63. Two fire safety orders were made by the Council on 20 May 2011. The first order required the repair or reconstruction of the external exit stairs, landings and balustrades at the rear of the property in accordance with the Building Code of Australia and relevant Australian Standards. The second order required the installation of various fire protection measures (including a smoke alarm system), a system of emergency lighting and exit signs, improving the fire resistance levels of the walls within the building, provision of ceilings throughout the lower ground floor laundries and storerooms of the building with a greater resistance to the incipient spread of fire, the installation of self-closing fire doors, and various other measures.

64. On 31 May 2011 Ms Crittenden wrote to the Council about the fire orders. In essence, she made the point that the orders did not take into account that DA 697/10 would involve the demolition of the existing rear stairs. She said that the orders would be “redundant” if the development application was approved.

65. Consent to DA 697/10 for balcony construction was given by the Council on 15 June 2011. Condition 2 of the consent amended the proposal by reducing the depth of the balconies from the rear of the building from 5m to 3.5m. (A review application in respect of that condition was lodged in September 2011, seeking balconies with a depth of 4.2m. The application was withdrawn after a Council report had recommended its refusal. It seems that the depth of balconies was a contentious issue for a number of owners of lots in nearby buildings.) Conditions 1(b) and 16 of the consent provided for the undertaking of fire safety upgrading works in accordance with Exova report, together with certain additional works.

66. On 17 June 2011 ACM sent a letter to Ms Crittenden which included the following:

We refer to your recent email advising the DA for balconies has been approved by Waverley Council.

…

We understand you have received a call from Mr Featherstone of Waverley Council. We further understand Mr Featherstone is seeking a realistic timetable for carrying out the fire safety works that will be subject of the approved DA.

We assume the required works will be similar to the orders issued on 20 May 2011 and soon to be revoked and replaced.

As soon as we receive the approved DA and the resultant fire order we will appoint a fire consultant on that day. Their job will be to liaise with Council, to draw up the scope of works as per the order, to obtain quotes, and to oversee the contractor chosen and to provide Council with a final sign off.

We anticipate being able to commence the works required to the current building footprint within four months of receiving the approved DA and completing them within 12 months of the date of this letter.

67. As foreshadowed by ACM’s letter, the fire orders issued on 20 May 2011 were in fact revoked by the Council. This was notified to the Owners Corporation by letter dated 17 June 2011. The revocation of the orders is likely to have been prompted by the earlier representations made on behalf of the Owners Corporation to Council by Ms Crittenden.

68. An EGM was held on 4 August 2011. The minutes record that it was resolved to confirm the appointment of Martin & Spork Pty Limited as consultants to oversee the fire order. Martin & Spork Pty Limited had earlier provided an estimate of about $210,000 for the carrying out of the required fire upgrade works. The minutes record that it was resolved that a special levy of $220,000 (including GST) be struck for the purpose of the fire upgrade.

69. On 8 December 2011 the Council gave notice of an intention to issue a fire order essentially in terms of condition 16 of the development consent to DA 697/2010. This notice was issued following a request made by ACM on 11 October 2011 that a fire order should issue on those terms. This request was made upon the advice of Ms Crittenden. It appears that the fees payable by the Owners Corporation in respect of the development would be lower if the works were the subject of an order.

227. On 26 May 2016 a direction was made for the service by Ms James of a proposed further documentary tender (not to exceed two volumes). Directions were also made for the service by the defendants of notices of any objections to the proposed tender, and for Ms James to include in her closing written submissions any response to such objections.

228. On 31 May 2016 Ms James served a proposed documentary tender consisting of four volumes. Those documents have since been copied and paginated by the defendants and are now contained in five volumes. In early June 2016 the defendants served notices of objections identified by reference to those page numbers and volume numbers. Ms James did not include in her written submissions of 9 August 2016 any response to the objections.

229. I have considered the objections. I have not acceded to the global objection made by ACM and Mr Anderson to the documents in volumes 3, 4 and 5, even though the tender exceeded the two volume limit. My rulings on the other objections made by the defendants are set out in a table annexed to these reasons. Subject to those rulings the five volumes will become an exhibit. All provisional evidentiary rulings made during the hearing are now made final.

Conclusion

230. In proceedings 2014/37203 the Court orders that the Amended Statement of Claim is dismissed. The Court further orders that Ms James pay the defendants’ costs of those proceedings.

231. In proceedings 2014/181511 the Owners Corporation is entitled to succeed against Ms James and Mr Barker for the amount of arrears in relation to the levies that fell due in the period from 1 January 2013 to 1 April 2015, together with interest pursuant to s 79(2) of the Act. The Owners Corporation is directed to serve and bring in, within 7 days, a schedule showing the current amount of arrears for those levies, and interest calculated up to today. The Court should then be in a position to proceed to enter judgment for the appropriate amount. The Court will also order that the costs of the Owners Corporation be paid by Ms James and Mr Barker.

**********

Schedule

Page	Ruling
Volume 1
JJ-0160	Admitted except for the handwriting
JJ-0161	Admitted except for the handwriting
JJ-0288	Admitted except for the handwriting
Volume 2
JJ-0442 – JJ-0459	Admitted
JJ-0494 – JJ-0520	Rejected
JJ-0521	Rejected
JJ-0522 – JJ-0528	Rejected
JJ-0529 – JJ-0535	Rejected
JJ-0538 – JJ0541	Rejected
JJ-0544 – JJ0547	Rejected
JJ-0612 – JJ-0617	Rejected
JJ-0795 – JJ-0804	Rejected
Volume 3
Whole of volume	Admitted subject to relevance and rulings below
JJ-0909	Rejected
JJ-1186 – JJ-1187	Rejected
JJ-1192	Rejected
Volume 4
Whole of volume	Admitted subject to relevance and rulings below
JJ-1357	Admitted
JJ-1395	Admitted
JJ-1399	Admitted
JJ-1465	Admitted except for the handwriting
JJ-1563	Admitted except for the handwriting
JJ-1636 – JJ-1661	Rejected
Volume 5
Whole of volume	Admitted subject to relevance and rulings below
JJ-1787	Admitted except for the handwriting

Decision last updated: 03 November 2016