Piazza v Strata Corporation 10147 Inc - [2019] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2019] SADC 38
Judgment of His Honour Auxiliary Judge Clayton
1 April 2019
REAL PROPERTY - STRATA AND RELATED TITLES - GENERAL MATTERS - NATURE OF STRATA TITLE - WHAT CONSTITUTES COMMON PROPERTY
JJAD Pty Ltd, the owner of a unit in a strata plan, has leased land which is a unit subsidiary, to Optus Mobile Pty Ltd. An annotation on the Strata Plan places an upper limit of 3 metres above existing ground level for the unit subsidiaries. Optus has erected a communications tower 29.31 metres in height on the land. The plaintiffs, who are other unit holders in the strata plan, claim that the airspace of the unit subsidiary above 3 metres is common property and claim that the rent from Optus should be paid into the sinking fund of the Strata Corporation.
Held:
1. The airspace above 3 metres is not common property.
2. The construction of the tower was approved by the Strata Corporation.
Strata Titles Act 1988 (SA) s 5(4), s 26, s 41A, Schedule 3; Acts Interpretation Act 1915 (SA) s 4, referred to.
Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479; Hutchens and Anor v City of Holdfast Bay and Anor [2007] SASC 238; Perilya Broken Hill Ltd v Valuer-General (No 6) [2015] NSWLEC 43; LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; HG Royal Park Pty Ltd v Strata Corporation 7176 Inc [2007] SASC 348; Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912, considered.

PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2019] SADC 38

The property at 65 Stevens Avenue, Torrensville is a strata scheme pursuant to the Strata Titles Act 1988 (SA). The scheme comprises eight units and common property. The first defendant, which was created under the Strata Titles Act on 1 May 1989, has the functions set out in s 25 of the Act, which include administering and maintaining the common property for the benefit of the unit holders.
The plaintiffs are the owners of Unit 8. The second defendant, JJAD Pty Ltd, is the owner of Unit 1.
Unit 1 comprises buildings and unit subsidiaries which are shown on the strata plan as yards, carparks and drives. An annotation on the Strata Plan 10147 reads:
The lower and upper limits for the unit subsidiaries shown hereon as yards, carparks and drives are existing ground level and 3.00 m above existing ground level respectively.
This action concerns a telecommunications tower, referred to in these proceedings as a monopole, constructed by Optus Mobile Pty Ltd in a yard or carpark which is a unit subsidiary of Unit 1. JJAD has leased the land on which the monopole is constructed to Optus.[1] The monopole is 29.31 metres in height and the plaintiffs claim that to the extent to which the monopole is greater than 3 metres in height, it passes through airspace which forms part of the common property of all eight units.
[1] Exhibit PD1:57; Tab 16.
The pleadings
The plaintiffs assert that there has never been the necessary unanimous resolution by the members of the first defendant to approve the installation of the monopole. They allege that both defendants are in breach of the Strata Titles Act 1988 and seek the following relief:
1.A declaration pursuant to s 41A(9)(da)(ii) that the erection of the Tower in the unit subsidiary of Unit 1 was unlawfully obtained; and
2.An order that a special resolution be put to the members of Strata Corporation 10147 in the following terms:
2.1. that the erection of the Tower in the unit subsidiary of Unit 1 and extending into common property in 2016 be retrospectively approved; and
2.2. that such proportion that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
3.An order that if the special resolution in paragraph [2.2] is not passed unanimously in accordance with the Act, that such proportion of that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
...
In the alternative:
6.An order that such proportion that the Court considers just and reasonable of the rent derived by the owner of Unit 1 in respect of the erection of the Tower since the date of its erection onwards be paid into the sinking fund of Strata Corporation 10147.
In the further alternative:
7.A declaration that the Tower infringes on common property.
8.A declaration that the first Defendant has breached its obligations under the Strata Titles Act 1988 (SA); and
9.Such relief as the Court deems appropriate as against the First and/or Second Defendant pursuant to s 41A of the Strata Titles Act 1988.
A claim by the plaintiffs that the second defendant cause the monopole to be removed was deleted from the Statement of Claim because such a claim would necessitate Optus being joined to the proceedings.
The first defendant has filed a defence in which it denied that the airspace above the unit subsidiary is common property and pleads that the airspace is not common property.[2] The first defendant alleges that the installation of the monopole was raised at the 2015 and 2016 Annual General Meetings of the Strata Corporation and there were no objections by unit holders with respect to the installation of the monopole.[3]
[2] Defence paras 12.2 & 14.1.
[3] Defence para. 16.3.
In its defence, JJAD denies that the common property continues into the airspace at the point 3 metres above ground level.[4] It pleads that on 26 July 1999, the strata corporation, by unanimous resolution, approved the Optus Network and Service Proposal which related to the monopole.[5]
[4] Defence para. 10.4.
[5] Defence para. 11.7.
In a counterclaim, JJAD seeks a declaration that if the Optus Network and Service proposal for the erection of the monopole was not approved by a unanimous resolution, the resolution which was passed be declared sufficient. In the alternative, the second defendant seeks an order that a special resolution be put to the members of the strata corporation in the following terms: ‘That the resolution passed be declared sufficient to authorise the Optus Network and Service proposal.’ A further order is sought altering the Articles and/or Strata Plan 10147, or in the alternative an order that a special resolution be put to the members of the strata corporation that the Articles and/or Strata Plan be altered. In the further alternative, an order is sought that special resolutions be put to the members of the strata corporation that three separate proposals by Optus be approved with effect from 26 July 1999, 30 September 2015 and 14 September 2016 respectively. In the further alternative, an order is sought compelling the unit holders to pass unanimous resolutions consistent with the Optus proposals. In the further alternative, JJAD seeks a declaration that the plaintiffs have waived and/or in the alternative are estopped from seeking relief. Finally, JJAD seeks such relief as the Court deems appropriate pursuant to section 41A of the Strata Titles Act 1988.
Part 3A of the Strata Titles Act contains provisions for the resolution of disputes between the strata corporation and the owner and occupiers of a unit. Section 41A enables an application to be made if the applicant claims that there has been a breach of the Act or of the Articles of the corporation or if the applicant claims to have been prejudiced as occupier of a strata unit by either wrongful act or default of the strata corporation or of some other member of the strata corporation.
These proceedings were commenced, as required by s 41A(2) of the Strata Titles Act, in the Magistrates Court but were transferred to this Court by the order of a Master pursuant to s 41A(4).
In hearing and determining the application, the court must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.[6]
[6] Section 41A(7).
Subsection 41A(9) gives the court extensive powers, including power to make declarations as to the validity of any decision or purported decision of a corporation and to order that the Articles of the corporation be altered.
Is the airspace in which the monopole has been constructed above the yard of the Unit 1 subsidiary common property of Strata Corporation 10147?
The plaintiffs’ case is that the airspace is common property. Both defendants assert that the airspace is not common property.
The history of the monopole
Initially, there was a single allotment on which there was a factory. Upon acquiring the factory, developers redeveloped the land so that it could be reconfigured as strata titles. Prior to the creation of the strata corporation, that part of the property which now comprises Unit 1 and its unit subsidiaries was let to a tenant and a telecommunications mast was already in place. That mast was a tall thin vertical structure that depended on guy lines for stability and was approximately the same height as the present monopole.
In April 1999, JJAD, which had acquired the property, sought permission to modify the use of the mast from a communications mast to a mobile telephone transmission mast. The proposal was noted without objection by the strata manager[7] and formally noted at the Annual General Meeting on 26 July 1999, when the use of the mast for mobile phone transmissions was approved. The first defendant was present at that meeting. The minutes record:
Radio Mast Unit1
The meeting noted that there were no objections to the proposed use to the radio mast, which is the property of unit 1, being used for mobile phone transmissions. [8]
[7] Exhibit PD1:12, Exhibit D 14.
[8] Exhibit PD1:31; Tab 9.
On 17 February 2006, JJAD sought permission to upgrade the mast.[9] The mast was to remain in the same position and the height was to remain the same but the configuration was to be upgraded and the mast was to be strengthened with extra guy lines. The strata manager, on behalf of the first defendant, acknowledged in a letter to the Optus property consultant that the works were being undertaken. He referred to that letter in a fax to Mrs Den Dryver as the ‘Strata Corporation Letter of Consent’.[10]
[9] Exhibit PD1:36; Tab 12.
[10] Exhibit PD1:37-8; Tab 13.
In 2015, Optus approached JJAD with a proposal to change the existing mast.[11] On 20 September 2015, JJAD sent an email to Mr Cheeseman, the Body Corporate Manager, in the following terms:
Optus have approached us to place a tower in our internal car park at unit 1, 65 Stevens Avenue. They plan to remove tower currently situated on the warehouse roof.
The tower will be away from the building giving access to plumbing et cetera. I do not believe it will have any impact on the Strata but have attached plans and pictures for your information.
Please confirm that we can continue planning for this development.[12]
[11] Exhibit PD1:95; Tab 18.
[12] Exhibit PD1:94; Tab 18.
Mr Cheeseman responded:
I gather the proposal is to move the tower from the roof of the unit 1 office building and into the unit subsidiary adjacent to the office.
I note that approval has already been given for the radio mast being used for mobile phone transmissions back in 1998 [sic – should be 1989].
Unless the proposed new tower is substantially larger or in a substantially different location I can't imagine there would be a problem with continuing to rely on the 1998 [sic] approval.
Having said that it may still be prudent to raise the matter as other business at the meeting on 30 September 2015 and have it minuted that there was approval given or at least no objection to the change of location.[13]
[13] Exhibit PD1:94; Tab 18.
Mrs Den Dryver responded on the same day saying:
The current tower is situated on the warehouse roof, they plan to remove the tower from the roof and place another tower on the ground in our internal car park area.
The proposed tower will be approximately the same height, Optus will be responsible for getting any approvals required by the Council.[14]
[14] Exhibit PD1:93; Tab 18.
Mr Cheeseman replied:
Doesn't sound like this should be a problem.
Might be worth mentioning it at the AGM anyway for the reasons discussed.[15]
[15] Exhibit PD1:93; Tab 18.
There were only four people present at the AGM on 30 September 2015. They were the strata manager Mr Cheeseman (who is now deceased), who was proxy for Units 4 and 6, Mrs Den Dryver, who was strata treasurer and proxy for Unit 7, Mr Den Dryver representing Unit 1 and Mr Piazza, the strata secretary and representative of Unit 8.
Mr Den Dryver gave evidence that Mr Piazza was provided with copies of the plans and two photographs which indicated the approximate location and configuration of the monopole in the Unit 1 subsidiary.[16] He said that plans for the monopole were discussed and in response to a question from Mr Cheeseman, Mr Piazza said that he had no objection to the defendants changing the mast.[17] The evidence of Mr Den Dryver is consistent with the documentation and the surrounding circumstances. It is corroborated by the evidence of Mrs Den Dryver, who said that when Mr Cheeseman asked whether Mr Piazza had objections, he said ‘No’ and that ‘he was happy for that approval to be put in place’.[18]
[16] T 108, 109 - Exhibit D4.
[17] T 110.
[18] T 169-25.
Mr Piazza gave evidence that he attended the 2015 AGM. He was shown the minutes but said that he did not remember the topic being discussed at the meeting. He said that often at meetings, Mrs Den Dryver would get up and discuss what she was going to do with her tower. He said ‘It’s her aerial and she’s doing what she likes with it. No skin off my nose.’[19]
[19] T 45-20.
The minutes of the meeting record:
Relocation of Telecommunications Tower
The owners of unit 1 advised the meeting that the telecommunications tower is to be moved from the roof of the warehouse of unit 1 and relocated in the car park at the rear of the offices in unit 1. The tower will be approximately the same size and height as is presently the case.[20]
[20] Exhibit PD1:143; Tab 23.
I accept the evidence of Mr and Mrs Den Dryver as to the events at the 2015 AGM. A discussion about the tower is consistent with the exchange of emails which had occurred between Mrs Den Dryver and Mr Cheeseman, who suggested ‘… prudent to raise the matter as other business at the meeting on 30 September 2015 and have it minuted that there was approval given or at least no objection to the change of location.’[21]
[21] Exhibit PD1:94; Tab 18.
Mr Piazza did not attend the Annual General Meeting held 14 April 2016 but gave his proxy to Mr Den Dryver. The minutes of that meeting record:
Mrs Den Dryver advised the Body Corporate Manager in October 2015 that concerning the relocation of the telecommunications tower, it was incorrectly minuted that the tower would be approximately the same size, it is fact the same height but broader at ground level. Mr Den Dryer advised that Council approval for the relocation of the telecommunications tower has now been received and the tower will be relocated as per the attached plan site.[22]
(Emphasis in original)
[22] Exhibit PD1:158; Tab 27.
Construction of the monopole commenced on 13 January 2017 and was completed by 31 January 2018.[23]
[23] Exhibit PD1:248.
Minutes record that at an Extra Ordinary General Meeting on 17 February 2017, which was held to discuss other issues, Mr Piazza ‘requested that his protest in regard to the new Telstra Tower (sic) be noted’.[24] He claimed that the Unit 1 yard was common property.
[24] Exhibit PD1:177; Tab 32.
That was the genesis of the current dispute.
Airspace
The plaintiffs claim that the upper limit for the yard of Unit 1 is 3 metres above ground level and that the airspace beyond that is common property.
While the annotation on the strata plan describes the upper limit for the unit subsidiaries, it does not specify that the Unit 1 subsidiary airspace is common property. Whether that airspace is common property must be determined by reference to the Act and the common law.
The Acts Interpretation Act 1915 (SA) provides in s 4:
In this Act and in every other Act or statutory instrument, unless the contrary intention appears-
…
“land” includes-
…
(b) waters and airspace over land.
That definition is not determinative of the issues that arise in this case.
An old maxim says Cujus est solum eijus est usque ad coelom et ad inferos (the person who owns the land owns it from the heavens above to the centre of the earth below).
It has been held that the airspace can constitute common property.[25]
[25] Ainsworth v Albrecht [2016] HCA 40; Janney v Steller Works [2017] VSC 363 [28].
In Bernstein of Leigh v Skyviews & General Ltd, Griffiths J said:
… The rights of an owner in the airspace above his land [should be restricted] to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height he had no greater rights in the airspace than any other member of the public.[26]
[26] [1978] QB 479 at [4].
In Hutchens and Anor v City of Holdfast Bay and Anor, Debelle J acknowledged the statement of Griffiths J.[27]
[27] [2007] SASC 238 at [12].
In Perilya Broken Hill Ltd v Valuer-General (No. 6), Briscoe J said:
An ancient maxim holds that the owner of the fee simple in land owns everything up to the sky and down to the centre of the earth. The maxim still has value for encapsulating, in simple language, a proposition of law that has commanded general acceptance. Nevertheless, it is inaccurate, as it applies to airspace only to such height as is necessary for the ordinary user of the land (thus avoiding the absurdity of a trespass committed every time a plane or satellite passes over land): Bocardo SA v Star Energy UK Onshore [2010] UKSC 35; [2011] 1 AC 380 at [26]; Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479; Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52, 11 BPR 21,493 at [17]–[18]; Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSW LR 464 at 470 (Bryson J). As regards ownership to the “centre” of the earth, logic suggests a similar need for some depth limitation: Bocardo SA v Star Energy UK Onshore Ltd [2009] EWCA Civ 579; [2010] Ch 100 (CA) at [60] (otherwise “landowners all have a lot of neighbours”); Butt, ibid 14.[28]
[28] [2015] NSWLEC 43 at [23].
In Land Law, 6^th edition, Emeritus Professor Butt said at [2 07]:
Sir Percy Wingfield regarded the maxim as an “unfortunate scrap of Latin” that had clogged the law’s development. Most recently, the English Court of Appeal described it as “not part of English law”. (Citing Bocardo SA v Star Energy Onshore Ltd [2009] 3 WLR 1010 at [59])
I accept the formulation by Briscoe J as representing the present state of the law and find that the airspace above the unit subsidiary of Unit 1 would only form part of the common property if it was necessary for the ordinary use of the land.
I have considered the arguments put by Mr Belperio, who appeared for the plaintiffs. He referred to LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd,[29] where Hodgson J said:
If the defendant’s submission is to the effect that the entry into airspace is a trespass only if it occurs at a height and in a manner which actually interferes with the occupier’s actual use of land at the time, then I think it is incorrect.
… the rule stated in Bernstein of Leigh (Baron) v Skyviews and General Ltd by Griffiths J was rather that trespass occurred only if the incursion was at a height which may interfere with the ordinary user of land, or is into airspace which is necessary for the ordinary use and enjoyment of the land and the structures upon it.
… the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake.[30]
(Emphasis in original)
[29] (1989) 24 NSWLR 490.
[30] At 497.

In this case, the use to which the airspace above the unit subsidiary could be put is restricted by s 5(4)(e) of the Strata Titles Act 1988, which provides that a unit subsidiary is for the separate use of the occupier of the unit. Accordingly, the ground and the first 3 metres of the airspace of the yard would not be available for use by any person other than JJAD.
I find that there is no ordinary use to which the airspace 3 metres above the yard in Unit 1 may be put by other unit holders.
The tower which was the predecessor of the monopole was excluded from the common property because it was for the exclusive use of Unit 1 and was installed before the deposit of the strata plan. I find that at the time Unit 1 was created in Strata Plan 10147, the mast was not within common property. As a consequence, the airspace occupied by the mast was not common property. In addition to the airspace occupied by the original tower itself, the airspace occupied by the guy wires which supported the tower were not common property.[31]
[31] Section 5(6)(c).
It is significant that the strata corporation itself has taken the position that the airspace occupied by the monopole is not common property.[32]
[32] First Defendant’s closing submissions paragraph 4.
I find that the Unit 1 subsidiary airspace is not part of the common property of the strata corporation.
In arriving at this finding, I take into account that there had been a tower on the site since 1999. The minutes of the meeting on 26 July 1999 cannot be overlooked; nor can the acquiescence of the unit holders to the upgrade of the tower in 2006, when the mast was strengthened by additional guy lines. Mr Piazza was present at the meeting in 1999 and the minutes record that there were no objections to the proposed use of the radio mast. The plaintiffs were informed of the upgrade in 2006.[33]
[33] Exhibit PD1:36; Tab 12.
In my opinion, it is inconsequential that the monopole is in a slightly different position and is greater in diameter. The evidence does not establish that the monopole would create any impediment on the use of the airspace different from those impediments caused by the pre-existing tower and guy lines.
The base of the monopole
Mr Belperio suggested that there was also a problem with the base of the monopole which must extend below the surface. There is no evidence which describes the depth to which the base protrudes below the surface, but again, there is no evidence of a reasonable use to which the land below the monopole could be put by the other unit holders. This issue was not pleaded and I do not give the suggestion any credence.
Was a resolution of the unit holders required?
The plaintiffs argue that the building of the monopole was a dealing with common property that required a unanimous resolution because of ss 26(3) and 26(4) of the Strata Titles Act 1988, which provide:
(3) A Strata Corporation cannot acquire, deal with or dispose of real property unless authorised by unanimous resolution of the Corporation.
(4) The Strata Corporation may, if authorised to do so by unanimous resolution of the Corporation, grant to a unit holder an exclusive right to occupy part of the common property for a specified period.
The plaintiffs complain that no unanimous resolution was obtained.[34] They argue that no unanimous resolution is recorded and that inadequate notice was given.
[34] Written submission paragraph 33ff.
I have held that the airspace was not common property. I find that there has not been a disposal of real property and that the authority of a unanimous resolution was not required.
In any event, I find that the events at the AGM in 2015, as recorded in the minutes and deposed to by Mr and Mrs Den Dryver in their evidence, should be interpreted as a unanimous resolution. The topic was fully discussed and nobody, including Mr Piazza, dissented from the proposal. Nobody complained that there had been inadequate notice of the proposal. If there had been late notice, the lack of sufficient notice was waived by the conduct of all the persons at the meeting. If Mr Piazza wished to complain about the lack of notice, he should have done so at the time, but instead he advised that he had no difficulty with the proposal.
There is evidence from Mrs Den Dryver, which I accept, that formalities were not always strictly adhered to at the meetings of the strata corporation.
Given my finding that the Unit 1 airspace is not part of the common property, s 26 had no application so that the giving of notice and the passing of a unanimous resolution was not required.
If the meeting did discuss matters beyond the scope of the purpose for which the meeting was summoned, all members who were present agreed to what was proposed. Their acquiescence waived any irregularity in notice or the form of the resolution.[35]
[35] HG Royal Park Pty Ltd v Strata Corporation 7176 Inc [2007] SASC 348 at [73]; Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912 at [38]-[39].
Did the monopole interfere with the use and enjoyment of common property by others?
Schedule 3 to the Strata Titles Act 1988 contains the Articles of a Strata Corporation. Article 2 provides:
2.     A person bound by these articles-
(a)     must not obstruct the lawful use of the common property by any person; and
(b)     must not use the common property in a manner that unreasonably interferes with the use and enjoyment of the common property by the other members of the Strata community, their customers, clients or visitors; and
(c)     must not make, or allow his or her customers, clients or visitors to make, undue noise in or about any unit or the common property; and
(d)     must not interfere, or allow his or her customers, clients or visitors to interfere, with others in the enjoyment of their rights in relation to units or common property.
There is no evidence that other unit holders could use the airspace above the Unit 1 subsidiary for any reasonable purpose and the evidence does not establish that other unit holders have been prejudiced by the construction of the monopole.
If I am wrong, and the monopole does intrude into common property, I find that it does not obstruct the lawful use of the common property. It does not unreasonably interfere with the use and enjoyment of the common property by other members of the strata community and it does not interfere with others in the enjoyment of their rights in relation to units or common property.
Conclusions
There has been no breach of s 26 or any other provision of the Strata Titles Act 1988 by either defendant.
The evidence does not establish that the erection of the monopole in the unit subsidiary of Unit 1 was unlawfully obtained and there is no basis for the declaration sought in paragraph 1 of the plaintiffs’ prayer for relief.
The evidence does not justify the order sought in paragraph 2, namely that a special resolution be put to the members of the strata corporation. If the plaintiffs want a resolution to be put to the members, they are able to arrange for a meeting to be called and put the resolution themselves.
As to paragraph 2.2, the evidence does not establish that it is just and reasonable for any of the rent derived by the owner of Unit 1 in respect of the monopole to be paid into a sinking fund. There is no basis for such an order.
There is no basis for the declaration claimed in paragraph 6 that the monopole infringes on common property.
There is no basis for the declaration sought in paragraph 7 that the first defendant has breached its obligations under the Strata Titles Act 1988.
As to the counterclaim, having heard the parties, I decline to make a declaration in terms of paragraph 4.1, that is, a declaration that the events at the Annual General Meeting in 2015 amounted to a sufficient resolution to authorise the Optus Network and Service Proposal.
I decline to make an order altering the Articles or Strata Plan 10147 in the way sought in paragraph 4.3 of the counterclaim. It would be necessary to hear from all of the unit holders before any such proposal could be considered.
As to paragraph 4.4, JJAD can itself take steps for a special resolution to be put to the members of the Strata Corporation 10147. An order of the court is not required. Additionally, there is no evidence supporting the claim.
The orders sought in paragraph 5 of the counterclaim are not required. Again, JJAD is able to arrange for special resolutions to be put to the members of Strata Corporation 10147 itself.
As to paragraph 6, the evidence does not support the order which is claimed. More importantly, the court cannot make an order compelling unit holders to pass a resolution without first hearing from the unit holders. That has not happened. Also, there is no basis for such an order.
Having regard to my earlier orders, I cannot see that the declaration sought in paragraph 7 of the counterclaim is required. However, I am prepared to hear submissions from counsel on this topic.
As to paragraph 8, there is no basis for any further orders.