LENANE and THE OWNERS OF HARBOUR PINES STRATA PLAN 23297 - [2025] WASAT 53

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   LENANE and THE OWNERS OF HARBOUR PINES STRATA PLAN 23297 [2025] WASAT 53
MEMBER:   MR T CAREY, MEMBER
HEARD:   23 APRIL 2025
DELIVERED          :   12 JUNE 2025
FILE NO/S:   CC 832 of 2024
BETWEEN:   ALBERT HENRY LENANE
First Applicant
GWENDOLINE CECELIA VOIGT
Second Applicant
PATRICIA DOREEN NELSON
Third Applicant
AND
THE OWNERS OF HARBOUR PINES STRATA PLAN 23297
First Respondent
ADDER HOLDINGS PTY LTD
Second Respondent

Catchwords:

Strata titles - Maintenance (10 year) plan - Compared with budget - Whether approved maintenance plan a budget - Whether requirements for notices of meeting met - Discretion - Voting - Applicants' exclusion as unfinancial - Oppressive and unreasonable conduct

Legislation:

State Administrative Tribunal Act 2004 (WA), s 32(2)
Strata Titles (General) Regulations 2019 (WA), reg 77, reg 77(1), reg 77(7), reg 80
Strata Titles Act 1995 (WA), s 100, s 100(2A), s 100(2A)(iii), s 100(2A)(b), s 100(7), s 102, s 102(2), s 102(5), s 119, s 119(1), s 120(2), s 122(1)(c), s 129(2), s 129(3), s 199(3)(d), s 200(2)(n)
Surveillance Devices Act 1998 (WA), s 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr H Bawden
Second Applicant	:	Mr H Bawden
Third Applicant	:	Mr H Bawden
First Respondent	:	Ms A Pull
Second Respondent	:	Ms A Pull

Solicitors:

First Applicant	:	Juris Partners
Second Applicant	:	Juris Partners
Third Applicant	:	Juris Partners
First Respondent	:	DLA Piper Australia - Perth
Second Respondent	:	DLA Piper Australia - Perth

Case(s) referred to in decision(s):

Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120
Edelsten v Wilcox (1988) 83 ALR 99

REASONS FOR DECISION OF THE TRIBUNAL:

Harbour Pines Retirement Village (Harbour Pines) is a strata titled retirement village located at 20 Francis Street, Geraldton consisting of 52 lots (51 residential and one service).
The Owners of Harbour Pines (strata company) is the strata company for the scheme registered in accordance with the Strata Titles Act 1995 (WA) (the Act).
Adder Holdings Pty Ltd (Adder) is the strata manager of the scheme.
On 11 July 2024, the strata company passed an ordinary resolution approving a 10 year maintenance plan (maintenance plan), such a plan being required by s 100(2A) of the Act.
By their application, three members of the strata company (applicants) seek to overturn the resolution due to invalidity based on three broad grounds[1]:
(a)the maintenance plan constitutes a budget or budget variation, for which a special (not ordinary) resolution is necessary;
(b)defects or irregularities in the notice preceding the relevant meeting of the strata company, and the voting process at the meeting; and
(c)the strata company and Adder engaged in oppressive and unreasonable conduct in relation to the maintenance plan proposal and its adoption.
[1] The three stated grounds reflect the applicants' submissions in their statement of issues facts and contentions and at the hearing. The first ground (maintenance plan constitutes a budget or budget variation) does not appear in the application document. However, I have allowed the applicants to pursue it, given that the Tribunal is required to act according to the substantial merits of the case without regard to technicalities (s 32(2) State Administrative Tribunal Act 2004 (WA)), and the respondents were clearly apprised of the first ground and responded to it.
I have considered and reject each of the grounds of asserted invalidity, in consequence of which the application must be dismissed. However, having formed a negative view about aspects of the manner in which the maintenance plan has been sought to be implemented, I provide some comments aimed at minimising the prospect of future disputation.

Is the maintenance plan a budget or budget variation?

Section 100 of the Act is concerned, according to its heading, with administrative and reserve funds and contributions.
Section 100 also provides (by s 100(2A)) for the compulsory requirement, in the case of 'designated strata companies', of a 10 year plan. The definition of 'designated strata company' includes a strata company for a scheme with 10 or more lots (the Act s 100(7)). The strata company is a designated strata company.
Section 100(2A) of the Act prescribes the following as contents of a 10 year plan:
(i)the common property and the personal property of the strata company that is anticipated to require maintenance, repair, renewal or replacement (other than of a routine nature) in the period covered by the plan; and
(ii)the estimated costs for the maintenance, repairs, renewal or replacement; and
(iii)other information required to be included by the regulations[.]
Regulation 77(1) of the Strata Titles (General) Regulations 2019 (WA) (Regulations) prescribes a further lengthy list of inclusions for purposes of s 100(2A)(iii) of the Act, including:
…
(g)the method by which the estimated costs for the maintenance, repair, renewal or replacement of the covered items, as set out in the 10 year plan, were determined, including any assumptions underlying that determination;
(h)a plan or recommendation for the funding of the estimated costs for the maintenance, repairs, renewal or replacement of the covered items.
…
Where required, a 10 year plan must be a continuous and enduring feature of a scheme's financial affairs. This is made apparent by s 100(2A)(b) of the Act requiring that a designated strata company ensure:
that the 10 year plan is revised at least once in each 5 years and that, when revised, the plan is extended to cover the 10 years following the revision.
Accretions to and deductions from the administrative and reserve funds of a strata scheme occur as part of the annual budgetary process particularised in s 102 of the Act. In particular, according to s 102(2) of the Act, the budget must be prepared 'taking into account … the 10 year plan for the reserve fund'. That is to say, in calculating the size of the reserve fund, regard should be given to the likely cost of maintenance and replacement set out in the current 10 year plan.
The strata company budget, on the one hand, and the 10 year plan, on the other, are interconnected, but quite distinct.
The budget regulates the financial affairs of the strata company from year to year, and provides the strata company's mandate to raise contributions from owners and make expenditure.
The 10 year plan is just that: a plan, in a state of perpetual revision, setting out (among other things) the types of non-routine maintenance and replacement anticipated for the duration of the plan, their estimated cost, how the cost was calculated, and a recommendation to fund that cost. It plays a role in the budgetary process, but cannot usurp the role of the budget as the strata company's authority to levy contributions and incur expenditure.
The applicants' contention that the maintenance plan is, in fact, a budget or budget variation is based on the nature of the maintenance plan and the intention as to how it would operate. As to the latter, reliance is placed on the asserted facts that it imposes financial obligations on lot owners and commits the strata company to specific expenditure over a fixed 10-year period.

My consideration of the maintenance plan

The maintenance plan is formally in the evidence before me as part of Exhibit 3 (the applicants' book of documents) and Exhibit 4 (the strata company's book of documents).
It is titled '10 year Maintenance Plan (June 2024)', refers to the name and address of the strata complex, and indicates as its period of operation '10 years commencing 1^st July 2024'.
I note the following further features:
•Under 'Introduction', it states that the plan as proposed estimates there are adequate contributions to accumulate sufficient funds to meet anticipated long-term costs needs of the Village, with essentially only an adjustment for inflation being required;
•Under 'Report Summary', it sets out, under 'The proposed Maintenance Plan Levy per lot pa (inc GST) is:', levies applicable to 1, 2 and 3 bedroom lots and the community hall according to an amount per unit entitlement;
•Under 'Methodology':
•It states 'The nominal forecast period of this report is 10 years and the costs anticipated during each of the years are detailed line by line on a yearly basis. The nominal time frame of the Report is to a large extent driven by the fact that many elements in a building's structure have a life beyond 10 years. Therefore an amount has been taken up for each item that would require replacement or substantial repair outside of the 10 year forecast period to account for these anticipated expenses.'
•It refers to the following categorisation of costs:
•Costs that occur in a predictable timeframe, in one tranche or as one project and within the 10 years forecast - eg external painting;
•Costs that occur in a predictable timeframe, in several tranches within the 10 years forecast - eg boundary fence replacement;
•Costs that occur in a predictable timeframe in one tranche or multiple tranches but will be outside the years forecast - eg driveway resurfacing.
•It anticipates that levy income will be the same each year for the next 10 years, and that it will initially not increase by a variable inflation factor to smooth the effects of major cost fluctuations given the initial fund balance and income.
•The methodology of assessment of future replacement costs is explained.
•Reference is made to a line item called Capital Replacement - General, which is a yearly provision for unforeseen and/or unknown capital costs and expenses.
•Under 'Timing', it refers to a delay in the implementation of the plan (which should have been voted on at its annual general meeting (AGM) on 1 May 2021) attributed to a previous Tribunal hearing and proposes an implementation date of 1 July 2024, to be sanctioned by an extraordinary general meeting (EGM) of the strata company.
•Under 'Cost of the plan', the cost of implementing the plan is stated as $110 per lot inclusive of GST. Reference is made to the extensive consultation with a cross section of professionals and industry experts in formulating the plan. For residents not in arrears, Adder would pay the implementation fee on their behalf. In the case of other residents, the fee would be invoiced and payable by 30 June 2024.
•The plan itself consists of a series of spreadsheets, tables and a graph, showing a 10 year plan of receipts and expenses, fund balances for 10 years, income summary for 10 years, contribution summary per lot for 10 years, and annual forecast expenditure by subject matter for 10 years.
There is no obvious omission from the maintenance plan of any of the legislative requirements for 10 year plans. Further, there is nothing apparent on the face of any of the maintenance plan or its supporting documents that suggests an intrinsic character other than that of a 10 year plan.
The obvious rebuttals to the applicants' assertion that the maintenance plan is a budget or variation of a budget by another name are that the plan is for a 10 year period, not one; it is expressed in terms of 'estimation', 'expectation' and 'prediction'; and it does not purport to impose any liability on or exact any payment from anyone, with the exception of the $110 per lot implementation fee.
The evidence of the respondents' sole witness muddies the waters however.
Lindsay Edward Quann is a director of Adder who gave written and oral evidence. He deposes that he caused Adder to establish Harbour Pines more than 30 years ago. He explains that currently, the majority of residents are registered proprietors of their respective lots, while Adder owns 13 lots, most of which are subject to lease for life contracts.
For present purposes, I refer to the following aspects of Mr Quann's oral evidence:
•He said that under the maintenance plan, levies are imposed on owners;
•He said that under the maintenance plan, expenditure on common property is incurred;
•To implement the plan, there is a need for the introduction of levies coming into the operating account of the plan;
•The fees are spelt out to residents each quarter;
•The accounts are audited to the 30 June each year;
•There is currently $22,000 sitting in the account of solid working capital;
•In answer to a question, Mr Quann said that the purpose of the levies is to implement the plan. In order to maintain the integrity of the plan, it is necessary to collect the fees outlined in that plan;
•With reference to the next AGM, when the annual budget would be considered and voted upon, Mr Quann remarked 'We are not waiting around until the budget in December'.
This evidence, based upon a fundamental misconception of the purpose and limitations of a 10 year plan, is concerning. It raises serious questions regarding the capacity of Adder to comply with its obligations as strata manager under the Act, two of which are recited in one of the documents accompanying the maintenance plan as to act honestly with reasonable skill and care, and to have a good knowledge of the Act.
For the reasons amply set out above, neither the strata company nor Adder should be seeking to enforce any provisions of the maintenance plan as if it carries the force of a budget passed by the strata company. However, on Mr Quann's own evidence, in some respects, this is exactly what the current management of Harbour Pines has been indulging in.
Two of the applicants, Mr Lenane and Ms Nelson, and a witness called by the applicants, Mr Blakeway, gave evidence of being charged levies under, or by reference to the maintenance plan. Mr Lenane complained that although money was being levied, there was no 'practical activity' - that is, none of the maintenance or renewal measures referred to in the maintenance plan were being undertaken.
The issue I need to determine concerns not Adder's conduct as strata manager, but the identity of the maintenance plan as a 10 year plan or some other, budgetary, document. Significantly for the present case, any liberties taken in the name of the maintenance plan are not material to the issue I have identified.
I find that the maintenance plan, in the form it was approved at an AGM of the strata company, is a valid 10 year plan, and not a budget for budget variation. The maintenance plan, of and by itself, can neither impose financial obligations on lot owners nor commit the strata company to specific expenditure over a fixed 10 year period. The respondents, and Mr Quann, would do well to fashion their conduct accordingly.
Further, according to the applicants' statement of issues, facts and contentions, some items of expenditure under the 10 year plan exceed the amount prescribed under reg 80 of the Regulations, and therefore require a special resolution under s 102(5) of the Act to be implemented. But that is a condition in the context of the annual budgetary process only; once again, it has no relevance to the validity of a 10 year plan.
I do not accept the applicants' submission that the maintenance plan constitutes a budget or budgetary variation.

Claimed notice of meeting and voting irregularities

Section 129 of the Act states relevantly:
(1)All owners of lots in a strata titles scheme and first mortgagees of those lots must be given at least 14 days' notice of every general meeting of the strata company for the scheme.
(2)The notice must include —
(a)the date, time and venue of the meeting; and
(b)for an annual general meeting, notice of each item of business referred to in section 127(3); and
(c)for special business, notice of the general nature of that business; and
(d)notice of each method of voting, whether by means of an electronic communication or otherwise, that is acceptable to the strata company.
(3)Accidental omission to give notice of a general meeting to the owner or first mortgagee of a lot or non‑receipt of the notice by the owner or first mortgagee of a lot does not invalidate any proceedings at the meeting.
…
The strata company's account of the process leading to and including the EGM when the maintenance plan was adopted is set out in the following paragraphs of Mr Quann's witness statement (Exhibit 8):
10 Year Plan Consultation
25Given the history of meetings with the tone of the meetings descending into belligerence as a result of the same faction of unfinancial residents, Adder in an attempt to avoid such discord, wanted to arrange an information meeting with residents to discuss amongst other things the 10 Year Plan.
26Adder wanted to also allow residents the time to absorb the information within the 10 Year Plan and have the opportunity to raise questions and discuss any matters with Adder prior to the vote proceeding.
27On Monday, 23 May 2024, Melissa Rickards, an employee of Adder who works at Harbour Pines in the front office, displayed a notice on the Community Centre Noticeboard of Harbour Pines regarding the village meeting where that information would be provided to residents (Village Meeting) (see BOD-6).
28Displaying meeting notices on the Harbour Pines Community Centre Noticeboard is usual practice for Adder as it is part of the procedures at Harbour Pines. Residents 7 regularly frequent the Community Centre for meals and social activities and review the noticeboard for any meetings or information related to Harbour Pines.
29The displayed notice confirmed the time, date, location and agenda items of the Village Meeting to be held on 12 June 2024, including:
9 am: Presentation: 2025 Village Strata Budget.
9:30 am: Presentation: 2025 Village Operation/Sink Fund Budget(s).
10 am: Presentation: 2025 Village Strata 10 Year Maintenance Plan.
30In addition to the displayed notice, a notice was uploaded to the Harbour Pines website on 28 May 2024 that confirmed that a notice had been displayed in the community centre regarding the next Village Meeting and the details of the meeting were repeated (see BOD-7).
31On 12 June 2024, in accordance with the notices, the 10 Year Maintenance Plan was presented to the residents.
32I was present at the meeting along with Ms Rickards and Zoe Thomas, a nominee of Adder. Most residents were in attendance including Mr Lenane with his lawyer Ms Bracks, and Ms Voigt (see BOD-8).
33During this meeting we discussed the proposed 10 Year Plan, its purpose and that there was going to be a month consultation period where any matters or proposed amendments could be discussed with Adder in person by appointment or any queries raised by email or phone if preferred. We also noted that the vote was proposed to be on 10 July 2024 at 9 am.
34Following the Village Meeting, on the same day, Ms Rickards delivered to all residents, by either email or by hand (whatever had been nominated by the lot owner), the proposed 10 Year Plan (see BOD-9 and BOD-10).
35Over the course of the next few weeks, Adder had a number of residents discuss the 10 Year Plan and any queries they had, though we did not hear anything from Mr Lenane, Ms Voigt or Ms Nelson.
Extraordinary General Meeting
36On 18 June 2024, Ms Rickards displayed a notice on the community centre board at Harbour Pines for the 10 Year Maintenance Plan Vote (see BOD-11).
37Due to a funeral taking place on 10 July 2024, Ms Rickards notified the residents on 27 June 2024 of the change in date by hand delivering to each unit's letterbox at Harbour Pines that the meeting was being moved back a day to 11 July 2024 (see BOD-12).
38The EGM was held at 9 am at Harbour Pines in the community hall on 11 July 2024. I was in attendance to cast votes for Adder, Adder's nominee Zoe Thomas, was the chairperson, Ms Rickards was in attendance and had received a proxy form from unit 6 to cast a vote (see BOD-13).
39A quorum was established at the EGM as there were over 50% of lot owners who were entitled to cast votes present (see BOD‑14).
40The First Applicant said he was recording the meeting. This was objected to by the Chairperson and the Respondents (see BOD‑15).
41At the commencement of the meeting, Ms Rickards as proxy for unit 6, demanded that the vote be made on unit entitlements.
42The voting took place and the motion was passed given the number of votes cast by those entitled to vote and present at the meeting was 85% in favour, 15% against (see BOD-16). The votes were counted by an independent scrutineer whereby each lot owner would enter into a room where the independent scrutineer was based and would provide their private vote to her for recording.

Hence, according to Mr Quann's account, the plan was presented at the initial meeting when some discussion about it occurred, the physical plan was provided to all owners, provision was made for a month's 'consultation' during which owners were invited to refer any queries or proposed amendments to Adder, and the final vote was taken at the EGM.
The applicants, although broadly accepting Mr Quann's timeline, were critical of a number of aspects of what transpired, albeit with different emphases.
Each of the applicants, and Mr Blakeway, whose involvement arose through his mother-in-law's ownership of a lot which she occupied until October 2024 when she moved into care, depose to receiving notice of the EGM by email or letter. Each applicant complained that the notice did not contain a venue. Mr Lenane also complained of the lack of a time of meeting, but not the date. There was also some criticism of the reconvening of the meeting from 10 July 2024 to the next day.
It is in my view necessary to consider the whole of the evidence going to the notice of the EGM. It indicates, and I find, that subsequent to the initial meeting on 12 June 2024, and on the same day, the owners were informed about the EGM either by email or hand delivery to their mailbox a notice of EGM to be held on 10 July 2024 in the form of the notice appearing in the applicants' Book of Documents at 1. This notice referred, among other things, to '10 year maintenance plan and reserve fund' as the subject and 'Proposed EGM: 10^th July 2024'. Its delivery was accompanied by the maintenance plan.
Mr Quann's uncontested evidence demonstrates, and I find, that another notice was given on 27 June 2024, which advised of the change of date of the EGM to 11 July 2024. This notice, in the form appearing in the respondents' book of documents at 147, was provided by posting it on the community centre notice board, consistent, according to Mr Quann, with Adder's usual practice as part of the procedures at Harbour Pines. It referred to 'next village meeting' on 10 July at 9 am at the 'Community Centre', and a 'meeting agenda' referring solely to '10 year maintenance plan vote'.
Taking account of both forms of notice, all requirements of s 129(2) of the Act are met, except a reference to the methods of voting acceptable to the strata company. Although, as a rule, it can be accepted that all statutory conditions attaching to exercising a function should be met, in this case there is an express exclusion from invalidity provided by s 129(3) in the case of accidental omission. The reason for the omission of voting methods from the notices was not the subject of any evidence.
Importantly, the relief which the applicants seek - in the alternative, a declaration under s 199(3)(d) that the resolution approving the maintenance plan is invalid, and an order under s 200(2)(n) that the resolution was not passed as an ordinary resolution ‑ both involve the exercise of the Tribunal's discretion.
Having regard to the following circumstances:
•each of the applicants and Mr Blakeway were aware in fact of the EGM and its purpose;
•each of them with the exception of Ms Nelson attended the EGM (and Ms Nelson sought to vote through a proxy, the lack of proxy forms accompanying the notice notwithstanding);
•the vote in favour was 85% (subject to the issue of found ineligibility to vote and other alleged inadequacies of the voting process, to which I will return), and
•even had the negative votes of all those opposed to the resolution been accepted, the resolution would still have passed as an ordinary resolution -
in my view, in the exercise of my discretion, any lack of technical compliance with the notice requirements does not justify the grant of the relief sought.
I turn to the claim of voting irregularities.
Section 122(1)(c) provides that votes are to be counted (and recorded) as follows:
for an ordinary resolution, the votes must be counted by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast, in which case, they must be counted in that manner.
I find, on the evidence of Mr Quann and others, that the second counting method (by number of unit entitlements) was employed in view of the demand made by Melissa Rickards as proxy for an owner, Anna Van Kampen. This was not the subject of criticism by the applicants apart from as part of its general oppressive and unreasonable conduct claim.
In closing submissions, counsel for the applicants resiled from the assertion in their statement of issues, facts and contentions that the statement in the minutes of the EGM indicating that the resolution was passed with 85% approval was contrary to what occurred at the EGM. What remains in issue is a contention that some lot owners were wrongfully prevented from voting as 'unfinancial'. Those owners include all three applicants.
Since around 2021, the parties have been at odds regarding management of the scheme. From 2021 until 2022, the applicants purported to act as members of the council under resolutions passed at an EGM in March 2021, which were subsequently found to be invalid.[2] At the same time, an administrator was appointed to the scheme.
[2] Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120.
According to Mr Quann's witness statement, the administrator, Mr Alan King, has provided audited accounts in which the shortfall of fees of a number of residents including the applicants is noted. An interest rate of 11% pa applies to these unpaid contributions.
In addition, Mr Lenane and Ms Nelson admitted their refusal to pay a sewerage pump levy of $660 when requested.
Each applicant disputes that they owe any money. An overarching concern expressed on behalf of the applicants was that the applicants have been denied access to documentation concerning their alleged unfinancial status.
Mr Lenane, in his oral evidence, was highly critical of Mr King, with specific reference to his lack of impartiality. He explained that the account into which owners' levies were paid was set up on the advice of a solicitor, and that the amounts paid were exactly the same as they had paid to the previous strata manager appointed by the council of which he was a member. He justified his refusal to pay the sewer pump levy by his assertion that it should have been covered by the sinking fund, but it had insufficient funds.
Ms Nelson was aware of the claimed shortfall in her payment of levies and the interest component. She said that the existence of the issue goes back to the previous Tribunal decision, and that her alleged debt of $4,000 is strongly disputed.
Ms Voigt, who did not attend the hearing and was therefore not available for cross-examination, makes some remarks in her witness statement about her unfinancial status, including the lack of any proper explanation as to why she owes money, and that she pays her fees by electronic funds transfer on the first day of each month.
During cross-examination of Mr Quann, he disagreed that no action has been taken against recalcitrant owners despite their alleged debts existing for years. He referred to the previous Tribunal proceeding involving the same parties as consuming a lot of time. He also said that one party had been taken to the Federal Court, and Adder had settled with 11 owners in arrears, leaving a 'hard core ten residents', who had had caveats placed on their properties.
In my view, in the absence of credible evidence to cast doubt on the regularity of positions taken by the strata company and the administrator regarding the state of individual owners' accounts, I am bound to accept them. The applicants' negative views of determinations made by the appointed administrator, whilst understandable, form an insufficient basis for me to make adverse findings about them.
It is not the case, as suggested by the applicants, that a negative inference arises from any failure of the strata company to establish through court proceedings the existence of a debt. That is particularly so in a highly charged relationship with a vexed history so apparent in this case.
I conclude that each of the decisions taken to rule the various owners as unfinancial for the purpose of voting on the maintenance plan was open to Adder, and that the owners in question were rightfully excluded from voting in accordance with s 120(2) of the Act.

Oppressive and unreasonable conduct claim

Section 119 of the Act provides:
In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme —
(a)unfairly prejudicial to or discriminatory against a person; or
(b)oppressive or unreasonable.
The applicants contend that the respondents' conduct at the EGM was oppressive and unreasonable, and designed to suppress dissent and opposition to the maintenance plan. In oral submissions, Mr Bawden appeared to widen the criticism to conduct associated with maintenance plan proposal, whether at the EGM or not.
The applicants rely upon an amalgam of matters, including:
•the fact that the strata manager and the strata council are effectively the same person - the former is Adder, of which Mr Quann is a director, and the latter is currently Mr Quann and his daughter;
•the EGM was conducted in a perfunctory fashion, with discussion on issues sought to be raised closed down;
•a lack of separation between the proponents of the plan being implemented and those conducting and counting the vote;
•choosing a voting method giving the management greater control over the voting.
To quote Mr Bawden, 'The whole method in which it has been and continues to be conducted is oppressive'.
As has been mentioned, relations between the strata manager and some owners including the applicants have been fractious for a number of years. This has manifested itself most obviously in the previous Tribunal proceeding, at a time when the present applicants were acting as members of the council of owners pursuant to resolutions passed at an EGM on 25 March 2021. At the same EGM, further resolutions terminating the then strata management contract with Adder and appointing another strata manager were passed. The Tribunal in the previous proceeding decided that each of the resolutions mentioned, and subsequent resolutions seeking to validate them, were invalid.
It is worth noting that during the period of the applicants' tenure as council members, another maintenance plan was commissioned and produced. In oral evidence, Mr Lenane observed 'We didn't see a reason to pay for a second plan'.
This application is not an appropriate vehicle for an investigation into the general manner in which Adder discharges its managerial function. Nor can it be used to explore any conflict of interest issues arising between Adder's roles as strata manager and the owner of 13 lots. It must be confined to the question of whether there is sufficient evidence to justify a finding of a breach of s 119 of the Act such that the Tribunal's powers to make one of the declarations sought by the applicants, the effect of which would be to strike down the maintenance plan, are enlivened.

Is there sufficient evidence of processes or outcomes that are oppressive and unreasonable?

A useful definition of 'oppressive' for present purposes is:[3]
The character of a policy, decision, or action which goes beyond its statutory purpose to be used for some collateral or punitive purpose.
[3] Edelsten v Wilcox (1988) 83 ALR 99.
'Unreasonable' is a commonly used and understood word. Its Macquarie dictionary definition includes:
not based on or in accordance with reason or sound judgment.
To support their claims of oppressive and unreasonable conduct, the applicants sought to tender into evidence a document said to be a transcript of the EGM. This was opposed by the respondents on the basis that the transcript was the product of the impermissible recording of a private conversation, citing Surveillance Devices Act 1998 (WA) s 5. After exchanges with the parties' counsel about the matter, I suggested, and the applicants ultimately agreed, that the transcript document would not be admitted, but that any of the applicants' witnesses would be entitled to refer to it, when giving evidence of the EGM, after exhausting their memory without reference to it. During the applicants' witnesses' evidence, very limited use of the transcript document eventuated.
Mr Lenane in his witness statement deposed that the meeting was conducted poorly and unprofessionally, with Mr Quann holding the floor with unhelpful rhetoric. His statement continued that any attempt to make a statement or ask a question was blocked by the chairperson.
In his oral evidence, Mr Lenane said that he had previous to the meeting submitted a number of questions in writing which were not answered. (Mr Quann denied ever seeing any such questions from Mr Lenane.)
According to Mr Lenane, he indicated at the meeting that there were two questions he wished to ask. He was told to wait until Mr Quann was finished speaking. However, he was not given any opportunity to ask anything.
Mr Lenane said that a number of people had their hand up but were told by the chair to sit down. The chair said a number of times 'We need to vote now'.
Mr Blakeway deposed that the way the meeting was conducted did not encourage discussion; residents were not given an opportunity to discuss an alternative to the proposed management plan; and the EGM was conducted 'with appalling railroad tactics to just push (the) vote through without any discussion'.
Mr Blakeway also referred to Vicki Armstrong, the scrutineer at the AGM. He said he overheard Ms Armstrong and Mr Quann discussing having dinner, and his farewell to her of 'see you love', as indicating her lack of independence in the scrutineer's role.
In his oral evidence, Mr Blakeway said that at the EGM, it was obvious that there was a rush to get the vote done. It was necessary to push for any discussion. Topics which were apparently discussed (despite the resistance offered) included comparing the maintenance plans and accountability/transparency issues.
The s 119 duty of strata companies is in terms of processes implemented and outcomes achieved. I am not persuaded that either the processes employed by Adder reflected in the evidence before me or the outcomes achieved (the principal one being the passing of the maintenance plan) are sufficiently egregious to be fairly described as 'oppressive' or 'unreasonable'.
The interconnection of the strata manager with the strata council, and Mr Quann's personal involvement, reflect the current ownership situation and past decisions of the strata company. By and of themselves, they cannot justify a finding of breach of s 119, concerned as it is with processes and outcomes.
The criticisms concerning what occurred at the meeting are, to my mind, an unsurprising reflection of the 'us and them' mentality of the applicants and their supporters in light of their history of disputation and litigation with Adder and those associated with it.
There are two narratives here: The applicants regard their treatment at the hands of the strata company's management as dismissive and punitive; Adder considers the applicants and the remainder of the 'core of ten' as self-serving and disruptive to the smooth functioning of the strata company.
There was a justifiable sense of urgency attached to the processes implemented by Adder to secure the vote to adopt the maintenance plan. None had been taken since the requirement for approval of such a plan came into operation in May 2020.[4] This was so despite the previous council (including the applicants in its membership) commissioning its own plan.
[4] Reg 77 Strata Titles (General) Regulations 2019 (WA). A suggestion was made by the applicants' counsel that the requirement of reg 77(7) that the first 10 year plan be submitted for approval at the first AGM of the strata company may determine this application, because the approval occurred at an EGM. I reject the suggestion on the basis that where, as here, the registration of the strata plan predated the requirement under the regulation, there is no good reason why approval at an EGM would not be sufficient.
Consistent with their narrative, the applicants complained of the vote being railroaded, and owners having questions which they were not permitted to ask at the meeting. However, this runs counter to the evidence of Mr Quann of the provision for a month consultation period where any matters or proposed amendments could be discussed with Adder in person by appointment and any queries would be answered, and that none of the applicants availed themselves of this opportunity.
Although I note Mr Lenane's evidence that he placed a written submission containing questions in the strata company box after the first meeting, this is not corroborated by a copy of the submission being included in the applicants' book of documents. I accept Mr Quann's unequivocal denial of the receipt of such a submission.
In light of the failures of all applicants (neither of Mr Lenane's co‑applicants contested theirs) to consult and ask any questions during the month allowed for them to do so, I am sceptical about their protestations that they had a genuine desire to contribute to a meaningful discussion on the merits of the maintenance plan, as opposed to reflexively registering their opposition to it. Whilst I also think it likely that the meeting, chaired by Mr Quann's daughter and co‑council member Zoe Thomas, was conducted in a manner calculated to defy any attempt by Mr Lenane and his cohorts to launch an attack against the plan, I do not consider this to be either oppressive or unreasonable in circumstances where ample opportunity for any legitimate concerns to be raised was provided prior to the EGM but not taken up. To the contrary, I believe that the chair of the EGM was entitled to do as she did and resist a concerted ambush.
As I have already said, this application is not the appropriate vehicle for an examination of Adder's different roles within the scheme. It is doubtless the case that Adder has significant influence on the direction taken be the strata company both as owner of 13 lots and as strata manager. In relation to the EGM in question, Mr Quann seems to have monopolised the discussion, and was permitted to do so by his daughter, the chair of the meeting. For the reasons I have given, this was not in the circumstances oppressive, nor did it give rise to an unreasonable outcome.
The other matters of concern to the applicants such as the method of voting (by unit entitlement) and the identity of the scrutineer (an apparent friend of Mr Quann) appeared to fall away as complaints of any substance, once the applicants accepted the respondents' evidence of the counting process. Assuming reliance continues to be placed on them, I have concluded that the exercise by an owner of the option available under s 122(1)(c) of the Act to demand that a count of votes by unit entitlements is a legitimate action available to any owner in relation to any proposed resolution which cannot ground a complaint of a failure by the strata company to act in accordance with s 119. As for the alleged fact of a personal relationship between the scrutineer and Mr Quann, no consequence arises for the purposes of the present application in the absence of any complaint about the recorded voting outcome.
I have concluded that, whether considered cumulatively or separately, the complaints made in the present matter are insufficient to establish that any processes implemented or outcomes achieved by either the strata company or its strata manager, Adder, was oppressive or unreasonable, and that no breach of s 119(1) of the Act has been made out.

Conclusion

Each of the applicants' grounds for relief being rejected, the application must be dismissed.

Order

The Tribunal orders:
1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR T Carey, MEMBER
12 JUNE 2025