Sydney Gold Bullion Exchange Pty Ltd v The Owners - Strata Plan No 34794 - [2025] NSWCATCD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sydney Gold Bullion Exchange Pty Ltd v The Owners – Strata Plan No 34794 [2025] NSWCATCD 69
Hearing dates: 11 Sep 2024
Date of orders: 28 July 2025
Decision date: 28 July 2025
Jurisdiction: Consumer and Commercial Division
Before: D Robertson, Principal Member
Decision:
(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the application is dispensed with.
(2)   The application is dismissed.
(3)   Subject to Order (4) below, the applicant is to pay the respondent’s costs of and incidental to the application as agreed or assessed.
(4)   If the respondent seeks a different order in respect of the costs of the application, it may, within 14 days of the date of publication of these orders, file in the Tribunal and serve upon the applicant submissions of no more than 5 pages and any evidence in support of a different order, in which event Order (3) shall cease to have effect.
(5)   If the respondent files submissions in accordance with Order (4) the applicant shall, within 28 days of the date of publication of these orders, file in the Tribunal and serve on the respondent submissions of no more than 5 pages and evidence in response.
(6)   Submissions filed in accordance with Orders (3) and (4) must indicate whether an oral hearing on costs is sought, and if so, why.
(7) Subject to consideration of the submissions filed by the parties the Tribunal may determine any further issue of costs on the basis of the written submissions and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:
LAND LAW – Strata title – Strata plan – Unit entitlements – Strata Schemes Management Act 2015 (NSW) s 236 – Order allocating unit entitlements – Requirement for certificate of valuation – Whether certificate required to value all lots or only those whose unit entitlement is proposed to be changed – Whether a lot is a “lot to which the application relates” if its unit entitlement does not change but the aggregate unit entitlement of all lots is reduced
LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for breach of statutory duty – Strata Schemes Management Act 2015 (NSW) s 9 – Extent of the statutory duty arising from the conferral of responsibility for the management of a strata scheme
LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for negligence – Extent of an owners corporation’s duty of care to lot owners in relation to the management of the strata scheme
LAND LAW – Strata title – Time-limit for commencement of applications in the Civil and Administrative Tribunal by lot owners seeking damages for breach of statutory duty or negligence against the owners corporation – Civil and Administrative Tribunal Rules 2014 (NSW) rule 23(1)(b)

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW) r 23
Civil Liability Act 2002 (NSW)
Strata Schemes Development Act 2015 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW) ss9, 236
Strata Schemes Management (Miscellaneous Amendments) Act 1996 (NSW)
Strata Titles Act 1973 (NSW)

Cases Cited:
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Chehab Investments Pty Ltd v The Owners – Strata Plan No. 89670 [2025] NSWCATCD 28
D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27
Isabella DIT Pty Ltd v The Owners – Strata Plan No 80988 [2015] NSWCATAP 210
McDonald t/as B E McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Reports 81–768
O’Connor v S P Bray Ltd (1937) 56 CLR 464; [1937] HCA 18
Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315
Seeto v The Owners – Strata Plan No 49458 [2019] NSWCATAP 166
The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66
Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCATAP 222
Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284
White House Developments Pty Ltd v The Owners - Strata Plan No 70276 [2025] NSWCATAP 68
Zhu v The Owners – Strata Plan No 51933 [2019] NSWCATCD 4

Texts Cited:
Gary Bugden, Strata Title Management Practice in New South Wales (6th ed,1993, CCH Australia Ltd)
P Herzfeld and T Prince, Interpretation (Thomson Reuters, 3rd ed, 2024)

Category: Principal judgment
Parties: Sydney Gold Bullion Exchange Pty Ltd (Applicant)
The Owners – Strata Plan No 34794 (Respondent)
Representation: Solicitors: Kanjian & Company (Applicant)
Jane Crittenden, Lawyer (Respondent)

File Number(s): 2024/00222919

REASONS FOR DECISION

Introduction

These proceedings relate to the allocation of unit entitlements within a strata titled commercial building (the building) in the Sydney CBD. The applicant owns two lots (Lots 33 and 34) on the eighth floor of the building. The building comprises 12 floors above ground level, the ground floor and a basement. Each of levels 2 to 10 has a similar footprint. Levels 11 and 12 are smaller.
The applicant seeks orders pursuant to s 236 of the Strata Schemes Management Act 2015 (NSW) (SSMA) allocating unit entitlements, and compensation pursuant to s 232(1)(a), (d) or (e) of the SSMA. In its written submissions the applicant quantified the amount of compensation sought at $31,990.78 in respect of Lot 34 and $13,738.66 in respect of Lot 33, a total of $45,729.44.

Background

To understand the nature of the applicant’s claim it is necessary to describe the history of the strata subdivision of the building.
On 25 May 1989, Strata Plan 34794 was registered. Strata Plan 34794 consisted of two lots. Lot 2 comprised areas on the ground floor and level 1 at the eastern end of the building, apparently accessed directly from the street on the south side. Lot 1 contained the balance of the building, apart from common property areas on each level, including: stairs; lifts; toilets; service areas and ducts. The unit entitlements of Lots 1 and 2 respectively were 70 and 30, that is an aggregate of 100.
On 29 November 1989, Strata Plan 35894 was registered. Strata Plan 35894 identifies that it is a “Plan of subdivision of lots 1 and 2 and part of the common property in SP 34794”. The strata plan bears the certifications by the Proprietors of Strata Plan No 34794 required by section 37(4)(a) and (5)(a) of the Strata Titles Act 1973 (NSW) (being the legislation governing the registration and management of strata schemes in 1989 and 1990), that is that the Proprietors had, by special resolution:

“[A]greed to each proposed unit entitlement and the proposed aggregate unit entitlement shown in the schedule” included on the strata plan; and
“[C]onsented to the conversion into common property of part Lot 1 in SP 34794”.

Strata Plan 35894 divided the building into 28 lots. What was previously Lot 2 became Lot 6. The basement and part of the ground floor became Lot 3. The balance of that part of the ground floor which was formerly part of Lot 1 became Lot 5 and part of Lot 4 and common property. The first floor, to the extent it was previously part of Lot 1, became the balance of Lot 4 and common property.
Levels 2, 3, 4 and 7 were each divided into multiple lots. In each case, part of what had formerly been lot property became a common property access corridor.
Levels 5, 6, 8, 9, 10, 11 and 12 each became a separate lot. In each case, the stairs, lifts and ducts remained common property, but the toilets (previously common property) became lot property. Level 8 became Lot 26.
The schedule of unit entitlements included in Strata Plan 35894 allocated, in aggregate, 1,000 unit entitlements between the 28 lots. Significantly for the purposes of these proceedings, Lots 20, 21, 26, 27 and 28, being levels 5, 6, 8, 9 and 10 respectively, that is the lots which comprised whole floors, were each allocated a unit entitlement of 60. The aggregate unit entitlement of the multiple lots on floors 2, 3, 4 and 7 amounted to 47 or 48.
On 18 September 1990, Strata Plan 37489 was registered as a “Plan of subdivision of Lot 26 in SP 35894”.
Strata Plan 37489 divided Lot 26, that is the eighth floor of the building, into four lots, Lots 31-34. The toilets on level 8 and an access corridor in front of the lifts became common property.
Lots 33 and 34, now owned by the applicant, were similar, albeit not identical, in location and dimensions to Lots 18 and 19 on level 4 and Lots 24 and 25 on level 7.
The strata plan bore certifications (as required by s 37(4)(a) and (5)(a) of the Strata Titles Act 1973) by “the Proprietors Strata Plan No 35894” that it had by special resolution:

“[A]greed to each proposed unit entitlement and the proposed aggregate unit entitlement shown in the schedule” included on the strata plan; and
“[C]onsented to the conversion into common property of part Lot 26 in SP 35894”.

The schedule of unit entitlements included in Strata Plan 37489 includes the 27 remaining lots within Strata Plan 35894 (identified as such on the schedule) as well as the four new lots created by Strata Plan 37489.
The aggregate unit entitlement is 1,000. The unit entitlements allocated to Lots 31-34 sum to 60. The unit entitlement of each of the 27 pre-existing lots remains unaltered from Strata Plan 35894.
The applicant acquired Lot 34 on 11 December 1990 and Lot 33 on 23 April 2021.
The issue underlying the applicant’s claims in these proceedings is that, notwithstanding that level 8 is now comparable in arrangement to levels 4 and 7, the four lots on level 8 are allocated 60 unit entitlements whereas the four lots on each of levels 4 and 7 are allocated only 48 unit entitlements.
Consequently, despite the similarity between lots 18, 24 and 33, lots 18 and 24 are allocated 10 unit entitlements, while Lot 33 has 13, and, despite the similarity between lots 19, 25 and 34, lots 19 and 25 are allocated 13 unit entitlements while Lot 34 has 16.
The applicant refers to the following events subsequent to the registration of Strata Plan 37489 as having relevance to its application. The relevant events are established by reference to contemporaneous documents and do not appear to be in dispute.
On 27 November 2012, at the Annual General Meeting of “Strata Plan 35894” a resolution was passed authorising the strata manager to engage the services of a surveyor to prepare a strata plan of subdivision of Lots 31-34 “to adjust the unit entitlement of such lots to reflect equivalent size blocks on other floors in the building.”
On 27 May 2013, Alastair Dunn, of Dunn’s Strata Consulting, forwarded to “all owners Strata Plan 35894” a letter enclosing notice of an Extraordinary General Meeting scheduled to be held on 13 June 2013.
The letter stated:

“The meeting has been convened to rectify an error in the units of entitlement currently allocated to Lots 31, 32, 33 & 34 (being the Eighth Floor) such Lots being a Strata Plan of Sub Division (SP 37489) of Lot 26 in SP 35894.
As can be seen on “Attachment C” to this letter, the units of entitlement currently allocated to these lots differs from lots on other floors such as Levels four and seven where the Lots situated on these floors are approximately of the same size as those on Level 8.
The proposed new Schedule of Units of Entitlement shows the alteration to the Units of Entitlement of Lots 31, 32, 33 & 34 from 16, 15, 13 & 16 respectively to 12, 11, 10 and 13 respectfully. As a result of these changes the Aggregate Unit Entitlement (AUE) changes from 1000 to 986. The individual units of entitlement afforded all other lots do not change but will, once the new schedule is registered with the Land Property Information (LPI), be expressed over an AUE of 986 instead of 1000.
Clearly this Extraordinary General Meeting is somewhat of a formality and accordingly Owners are encouraged to submit a Proxy to the undersigned to be used for this meeting and any adjournment thereof only, Obviously any Owner wishing to attend will be most welcome.”

Attachment C referred to in that letter incorporated “an Analysis of Amendment to Units of Entitlement” which reflected the proposed changes outlined in the letter.
An Extraordinary General Meeting of “Strata Plan 35894” was held on 13 June 2013. At that meeting the following resolution was passed by special resolution:

“The Owners Strata Plan 35894, being a Strata Plan of Sub Division of Lots 1 & 2 in Strata Plan 34794, and the Owners of Strata Plan 37489 being a Strata Plan of Sub Division of Lot 26 in Strata Plan 35894 hereby RESOLVE SPECIALLY to agree to each proposed Unit of Entitlement and the proposed Aggregate Unit Entitlement shown on the Schedule attached to the Notice of this Meeting, and Marked Attachment B, and that a copy of the Schedule be affixed to the pages of the Minute Book immediately following the Minutes of this Meeting.”

The schedule attached to the notice of meeting, attachment B, is said by the applicant not to be able to be found within the respondent’s records. The applicant submits that it may be inferred that it incorporated the same proposed changes to unit entitlements as Attachment C.
On 20 April 2015, an Extraordinary General Meeting of “Strata Plan 35894” passed resolutions:

That the owners corporation agreed to “proposed shopfront works covering Lots 4 & 6” subject to the owners of Lots 4 and 6 consenting to a special bylaw covering the works;

“[T]hat the Owners of Lots 4 & 6 agree to a strata plan of Sub Division of Lots 4 & 6 whereby the two common property toilets on Level 2 become part of Lots 4 & 6 and that the Units of Entitlement for Lots 4 & 6 increase from 160 to 170 for Lot 4 and from 86 to 90 for Lot 6.”

“That the Units of Entitlement for Lots 31, 32, 33 & 34 decrease as follows:

Lot 31 – 16 to 12, Lot 32 – 15 to 11, Lot 33 – 13 to 10, Lot 34 - 16 to 13”

The covering letter from Mr Dunn enclosing the notice of that meeting had indicated that the owners corporation had reached agreement with the owner of Lots 4 and 6 that the owners corporation would consent to a proposed shop front, the construction of a door in the common property wall between Lots 4 and 6 on level 1 and the incorporation of the toilets on level 1 into Lots 4 and 6 “by way of a Strata Plan of Sub Division”. The owner of Lots 4 and 6 had in turn agreed to increasing the units of entitlement for Lots 4 and 6 by 14 units “which will enable the Units of Entitlement for the lots situated on Level 8 to be reduced by a net 14 units of entitlement.”
The letter stated:

“We are awaiting the documentation relating to the Strata Plan of Sub Division and hence are not in a position to formally put the Strata Plan of Subdivision with the new schedule of unit entitlements … to a general meeting. The purpose of this meeting is to approve the proposed shop front to allow the appropriate Application to be lodged with Council.”

At the Annual General Meeting of “Strata Plan 35894” on 27 November 2019, resolutions were passed:

“[T]hat the Strata Manager, pursuant to resolutions passed at the Extraordinary General Meeting held 20/04/15, invoice the Owners of Lots 4 & 6 for an adjustment in levies for Lots 4 & 6 In favour of the Owners of Lots 31,32,33 & 34 effective from 1 December 2013 and to continue with such adjustment until registration of the strata plan of subdivision has been approved and lodged with the LPI.” and
“[T]hat the adjustment amounts payable to the Owners of Lots 31,32,33 & 34 be made prior to 31^st March 2020.”

It appears that a different strata manager was appointed with effect from about February 2021.
On 10 March 2021, a solicitor, Ms Crittenden, addressed a strata committee meeting regarding “the units of entitlement for level 8 subdivision SP 37489 (Lots 31, 32, 33 & 34)”. The minutes record Ms Crittenden providing the following “background information”:

“SP 34794 was registered on 25 May 1989 and comprised two lots;
SP 35894 was registered on 29 November 1989 and is a strata plan of sub-division and created lots 3-30;
SP 37489 was registered on 19 June 1990 and sub-divided lot 26 being level eight creating lots 31-34;
The correct strata plan number is SP 34794 that entity owns the common property;
The aggregate units of entitlement [UE’s] is 1000;
The only way to change UE’s is by an order of the NSW Civil and Administrative Tribunal (NCAT);
Either an Owners Corporation or an individual Owner can make application for a change of UE’s to NCAT;
There has been no application made by an Owner or by SP 34794 to date;
Levies can only be raised by UE’s;
For a change of UE’s it requires a Valuer’s report and that needs to support the proposed change;
The relevant date of the valuation is not today but either one of the dates of the strata plan of subdivision (the relevant date);
A Valuer needs to inspect each and every lot and refer back to the relevant date - an expensive exercise;
The application can be opposed (if made by the Owners Corporation by individual Owners, or if made by an individual Owner by other Owners and/or the Owners Corporation);
If opposed they would need their own independent Valuer’s report;
The Valuer needs to understand the condition of the lots at the relevant date;
The act says UE’s are determined by value (not just size);
One cannot make changes to UE’s by a resolution at a meeting;
The question of whether the tribunal can backdate the UE’s if they make an order is not expressly stated in the Strata Schemes Management Act (SSMA);
If an application is made in the first six years in the life of a strata scheme then the original owner pays for the reallocation;
This strata plan is well outside the six years;
The original owner was Fobone Pty Ltd;
Any application to NCAT would also require the services of a lawyer;
A re-evaluation would affect each and every lot not just level eight;
The total of UE’s for level eight when adding up the four lots is 60 which is the same as it was before the strata plan of subdivision;
Whole floors on levels nine and ten have 60 UE’s;
An exercise was conducted comparing the UE’s on level seven (lots 22-25) being 48 with those on level eight being 60;
This was where the anomaly was first noticed;
The discussion turned to level ground and one and the exclusive use of parts of level one for lots four and six and if any agreement is in existence;
This was considered a separate issue;
If a new plan strata plan of subdivision was created then in addition a surveyor would be required and stamp duty would be applicable;
By-Laws are never permanent Jane Crittenden advised and they can be amended or revoked;
Again, Jane Crittenden reminded those present that any Owner can make an application for a change in the UE’s;
The discussion turned to the previous agent and to earlier strata committees;
Jane’s recommendation is for Owners to come to an agreement on what outcome is desired and what the Owners Corporation (and individual Owners) want to achieve;
Once that is relayed along with any documents showing previous agreements) to the Strata Managing Agent then he can seek for the Owners Corporation advice from the lawyer.”

It may be noted from the above that there was, until 2021, some uncertainty or confusion within the building and its owners about the correct identification of the owners corporation. As the strata committee was advised by Ms Crittenden on 10 March 2021, the owners corporation was constituted by the registration of Strata Plan 34794 on 25 May 1989. Strata Plans 35894 and 37489 were strata plans of subdivision of Strata Plan 34794, or of lots within Strata Plan 34794.
The respondent named in the application was The Owners - Strata Plan 34794. Although the respondent’s correct title is “The Owners – Strata Plan No 34794” (see s 8 of the SSMA), no party has suggested that the respondent is incorrectly identified.

A meeting of the strata committee of Strata Plan 34794 was held on 30 March 2021. The minutes of that meeting record that the committee resolved to receive a cost disclosure from Ms Crittenden and a quote from “Egan National Valuers” and to “convene a general meeting to appoint Jane Crittenden Lawyer and Egan Valuers.” The minutes include a note that the strata manager was asked to arrange a meeting with the valuer “so they can better understand the methodology involved in carrying out a valuation of UE’s”. The minutes include a further note:

“It was further noted that after the valuation report is received and reviewed by the Owners Corporation it might be that the Owners Corporation decides not to proceed with a submission to NCAT. But that can’t be ascertained without the report.”

The minutes also record that:

“Consideration of obtaining advice about paying compensation to Level 8 Lot Owners was deferred to a later date.”

At a strata committee meeting of The Owners – Strata Plan No 34794 held on 15 July 2021 a resolution was passed to rescind the motion passed at the meeting of 30 March 2021 to convene a meeting to appoint Ms Crittenden and Egan Valuers.
At an Extraordinary General Meeting held on 15 July 2021, The Owners – Strata Plan No 34794 resolved by special resolution:

To make a special by-law to authorise works affecting the common property by the owner of Lot 4, involving the construction of a doorway through the common property wall between Lots 4 and 6 and confer upon the owner of Lot 4 exclusive use of the common property where the wall has been removed; and

To make a special by-law conferring upon the owners of Lots 4 and 6 exclusive use of the common property areas occupied by the toilets on level 1 and authorising works to those areas (which the by-law noted had already been completed between 2015 and 2017). The by-law required the owner of Lots 4 and 6 to pay the owners corporation $90,000 as “compensation for the grant of the exclusive use right”.

The Proceedings

The applicant filed the application in these proceedings on 17 June 2024. As filed, the application sought orders as follows:

“1. Pursuant to s 236 (1) of the Strata Schemes Management Act, 2015, the allocation of unit entitlements among the 4 lots in strata plan 37489 being lots 31, 32, 33 and 34 be amended in accordance with the schedule of unit entitlements in the valuation certificate as at 18 September 1990 of Simon Azar of Access Valuations Pty Ltd.
2. In consequence of order 1, the aggregate of unit entitlements in strata plan 34794, being the head strata plan, be reduced from 1000 to 986.
3. Further and in the alternative to order 2, pursuant to s 232 (1) (a), (d) or (e) of the Strata Schemes Management Act, 2015, the aggregate of unit entitlements in strata plan 34794 be reduced from 1000 to 986 and this reduction to take effect as a decision of The Owners – Strata Plan 34794 under s 245 (e) of the Strata Schemes Management Act, 2015.
4. The Owners- Strata Plan 34794 take all necessary steps to lodge with the Registrar General of New South Wales Land Registry Services and have recorded on the certificate of title of common property in strata plan 34794 the orders of the Tribunal.
5. The Owners- Strata Plan 34794 to inform all owners in writing of lodgment of these orders with the Registrar General of New South Wales Land Registry Services with this notification to be given within 7 days after lodgment.
6. Pursuant to s 232 (a), (d) or (e) of the Strata Schemes Management Act, 2015, The Owners – Strata Plan 34794 pay damages to the applicant in a sum to be assessed calculated as the aggregate of levies paid in respect of lots 33 and 34 in strata plan 37489 during their ownership by the applicant in excess of that which would have been paid if The Owners – Strata Plan 34794, in compliance with statutory and general law duties owed to the applicant, had acted on the special resolution passed on 13 June 2013 to amend the unit entitlements of lots 33 and 34 as now amended by these orders.
7. Pursuant to clause 39 of the Civil and Administrative Tribunal Rules, 2014, The Owners – Strata Plan 34794 pay interest to the applicant on damages awarded under order 6 from and including the date of these orders to and including the date of payment.
8. Pursuant to s 60 of the Civil and Administrative Tribunal Act, 2013 or clause 38 of the Civil and Administrative Tribunal Rules, 2014, The Owners Strata - Plan 34794 pay the costs of the applicant of and incidental to this application as agreed or assessed.
9. Pursuant to s 90 of the Strata Schemes Management Act, 2015, The Owners – Strata Plan 34794 must pay damages, interest and costs ordered against it in these proceedings from contributions levied only in relation to lots in the strata scheme other than lots 31, 32, 33 and 34 in strata plan 37489.
10. Further or in the alternative to order 9, pursuant to s 104 (1) of the Strata Schemes Management Act, 2015, The Owners – Strata Plan 34794 be prohibited from levying a contribution on the applicant in respect of its costs and expenses in the proceedings.
11. Further or in the alternative to order 9, pursuant to s 104 (2) of the Strata Schemes Management Act, 2015, The Owners – Strata Plan 34794 be prohibited from paying its costs and expenses in the proceedings or any part thereof from its administrative fund or capital works fund but must make a separate levy for that purpose.
12. Such further or other order as the Tribunal sees fit.”

The application was accompanied by an affidavit sworn on 6 June 2024 by Mr Sam Saffo, a director of the applicant, and an affidavit sworn on 12 June 2024 by Mr Simon Azar, a Registered Real Estate Valuer and a Fellow Member and “Unrestricted Valuer” of the Australian Property Institute.
Mr Saffo’s affidavit exhibited a bundle of 164 pages marked as Exhibit SS-1.
Mr Azar annexed to his affidavit:

A A letter of instruction from Kanjian & Company, the applicant’s solicitors, dated 16 April 2024;

B An undated report headed “Unit Entitlement Valuation of Lots 31-34 in Strata Plan 37489 (Being a subdivision of Lot 26 within SP 35894)”;

C Mr Azar’s curriculum vitae, including a certificate of membership as a Certified Practising Valuer of the Australian Property Institute.

At a directions hearing on 17 July 2024, the Tribunal:

Granted both parties leave for legal representation;

Noted:

That the applicant did not seek to file any further evidence;

That the respondent maintained that the evidence filed by the applicant was inadequate for the reallocation of unit entitlements pursuant to s 236 of the SSMA as the valuation evidence was restricted to the four lots on level 8, and that the applicant disagreed; and

That the parties agreed that the proceedings were suitable to be determined “on the papers” pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and that neither party sought an oral hearing.

Made directions for the exchange of written submissions including submissions in reply from the applicant.

Directed that “Unless the Tribunal otherwise orders, the final hearing is to be on the papers.”

On 22 July 2024, the applicant filed an “Amended Application” which:

Added additional words to the beginning of Order 2 so that it reads:

“2. Pursuant to s 229(a) of the Strata Schemes Management Act, 2015 and ancillary to or in consequence of order 1, the aggregate of unit entitlements in strata plan 34794, being the head strata plan, be reduced from 1000 to 986.”

Replaced Orders 9-11 with one order:

“9. Pursuant to s 232(1)(a) or (e) of the Strata Schemes Management Act, 2015, The Owners – Strata Plan 34794:
(a) pay damages, interest and costs ordered against it in these proceedings from contributions levied only in relation to lots in the strata scheme other than lots 31, 32, 33 and 34 in strata plan 37489;
(b) be prohibited from levying a contribution on the applicant in respect of its costs and expenses in the proceedings; and
(c) be prohibited from paying its costs and expenses in the proceedings or any part thereof from its administrative fund or capital works fund but be required to pay, meet or bear the same by separate levy for that purpose.”

Renumbered Order 12 as Order 10.

The applicant filed written submissions on 2 August 2024, the respondent filed submissions in response on 26 August 2024, and the applicant filed submissions in reply on 6 September 2024.
The respondent’s submissions addressed the applicant’s Amended Application, without objection, notwithstanding that no leave had been sought for the filing of that document. I will proceed on the basis that the orders sought by the applicant are those set out in the Amended Application.

Dispensing with a Hearing

Having considered the submissions and evidence filed by the parties I am satisfied that the issues for determination can be adequately determined on the basis of the written material and without a hearing.
In this regard, I note that the respondent did not challenge the accuracy, as opposed to the relevance, of any of the lay evidence filed by the applicant. I am satisfied on the basis of Mr Azar’s affidavit that he is qualified to give evidence of the value of real property, including lots in a strata scheme and (for the reasons outlined below) that he has the necessary qualifications to meet the requirements of s 236 of the SSMA. Although the respondent submitted that Mr Azar’s report was not a reliable valuation of the Lots which he valued, it did not seek to cross-examine him. Hence there is no need to take oral evidence from any party. In particular, there is no need for either Mr Saffo or Mr Azar to be cross-examined.
Although it may be argued that the Tribunal’s direction of 17 July 2024 was sufficient order dispensing with a hearing, for the avoidance of doubt, I will make an order pursuant to s 50(2) of the NCAT Act dispensing with a hearing of the application.

The relevant legislation

The Amended Application refers to ss 236, 229, 232 and 245 of the SSMA. It is convenient to set out at this point the relevant parts of those provisions.
Section 236 of the SSMA provides for the Tribunal to make orders adjusting the unit entitlements allocated to lots within a strata scheme. That section provides:

236   Order for reallocation of unit entitlements
(1) Tribunal may make order allocating unit entitlements The Tribunal may, on application, make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order if the Tribunal considers that the allocation of unit entitlements among the lots—
(a)  was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or
(b)  was unreasonable when a revised schedule of unit entitlement was lodged at the conclusion of a development scheme, or
(c)  became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without planning approval.

(2) Matters to be taken into consideration In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and to such other matters as the Tribunal considers relevant.
(3) Persons who may apply for order An application for an order under this section may be made by any of the following—
(a)  an owner of a lot (whether or not a development lot) within the parcel for the strata scheme,
(b)  the owners corporation,
(c)  the lessor, in the case of a leasehold strata scheme,
(d)  the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.

(4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates.
(5) Qualifications of person making valuation The certificate must have been given by a person who is a qualified valuer within the meaning of the Strata Schemes Development Act 2015.
(6) Ancillary orders that may be made if original valuation unsatisfactory The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by an original owner, also order—
(a)  the payment by the original owner to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b)  the payment by the original owner to any or all of the following people of the amounts (if any) assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order—
(i)  the lessor, in the case of a leasehold strata scheme,
(ii)  the owners corporation,
(iii)  the owners of lots.

(7) Lodgment of order The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged with the Registrar-General no more than 6 months after the order is made. Nothing in this section prevents a person who is entitled to apply for an order under this section from lodging a copy of an order made under this section.

The “qualified valuer” (as required by subs (5)) is defined in s 4 of the Strata Schemes Development Act 2015 (NSW) (SSDA) as follows:

qualified valuer means a person who—
(a)  has membership of the Australian Valuers Institute (other than associate or student membership), or
(b)  has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or
(c)  has membership of the Royal Institution of Chartered Surveyors as a chartered valuer,
…

Sections 229 and 232 of the SSMA relate to the order-making powers of the Tribunal. They relevantly provide:

229   General order-making power of Tribunal
The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders or other decisions—
(a)  an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate,
(b)  an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013.

232   Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(a)  the operation, administration or management of a strata scheme under this Act,
…
(d)  an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
(e)  an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
…

(2) Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

Section 245(1)(e) of the SSMA provides that “an order under section 232 in which the Tribunal declares that the order is to have effect as a decision of the owners corporation” is taken to “have effect as a resolution of the owners corporation to do what is needed to comply with the requirement”.
It is convenient to deal with the application for the variation of unit entitlements (ie Orders 1-5 in the Amended Application) before considering the applicant’s claim to compensation and other consequential orders.

The variation of Unit Entitlements

Applicant’s submissions in chief

The applicant relied upon the evidence of Mr Saffo and Mr Azar and in particular a certificate incorporated into Mr Azar’s report which certified the value of each of Lots 31-34 as at 18 September 1990 as follows:

Lot

Value

31

$510,000

32

$470,000

33

$430,000

34

$550,000.

The applicant submitted that the application complies with s 236(4) in that the application was accompanied by a certificate prepared by a qualified valuer “specifying the valuation at the relevant time of registration of strata plan 37489 of each of the four lots to which this application relates.”
The applicant submitted that:

“9… It should be noted that the application does not seek to disturb the unit entitlements of lots the subject of strata plan 35894. No claim is made that the allocation of unit entitlements to those lots was unreasonable when that strata plan was registered on 29 November 1989.”

The applicant submitted that the only concern of the Tribunal is with the unit entitlement of Lots 31-34 and that the adjustment of the aggregate unit entitlement of the strata scheme in consequence of the adjustment of the unit entitlements of Lots 31-34 is not a matter about which the Tribunal is required to be concerned.
The applicant submitted:

“[I]f this application is successful, there will be a marginal adjustment of the fractional share of common expenses to be borne by owners of lots the subject of strata plan 35894 but the unit entitlement of each … will otherwise remain undisturbed.”

In support of the submission that the allocation of unit entitlements to Lots 31-34 was unreasonable at the time of registration of Strata Plan of Subdivision 37489, the applicant relied upon the fact that Lots 31-34 were “considerably smaller in area than Lot 26” yet were allocated the same number of unit entitlements.
Although the applicant did not expressly refer in its submissions to the propositions summarised at [17] and [18] above, its submissions concerning the appropriate allocation of unit entitlements to Lots 31-34 implicitly relied upon those matters.
The applicant suggested that the allocation of unit entitlements in Strata Plan 37489 proceeded by reference to s 10 rather than s 11 of the Strata Titles Act 1973, as in force in 1990^[1].
1. I note that the applicant’s submissions erroneously referred to the relevant act as the Strata Schemes (Freehold Development) Act 1973. The Strata Titles Act 1973 (NSW) was renamed the Strata Schemes (Freehold Development) Act 1973 in 1996 pursuant to cl [1] of sch 2.30 to the Strata Schemes Management (Miscellaneous Amendments) Act 1996 (NSW).
Section 10 of the Strata Titles Act 1973, as in force in September 1990, was headed “Unit entitlement of lots created by subdivision of lots” and provided that a proposed strata plan of subdivision “altering the boundaries of one or more lots so as to create only two or more different lots” was required to include a schedule of proposed unit entitlements in which the proposed different lots were to have a total unit entitlement equivalent to the unit entitlement of the subdivided lots and each other lot was to have a unit entitlement which bore the same proportion to the aggregate unit entitlement as before the proposed subdivision.
Section 11 of the Strata Titles Act 1973, as in force in 1990, applied to proposed strata plans of subdivision (other than of development lots) not referred to in s 10. Section 11 required the plan of subdivision to include a schedule of unit entitlements, but did not impose any constraint on the proposed unit entitlements either in respect of the pre-existing lots or the proposed different lots.

The applicant also submitted that the allocation of 60 unit entitlements to Lots 31-34 by Strata Plan 37489 was “effected” by Fobone Pty Ltd, the original developer of the strata scheme for the building including the original Strata Plan 34794. The applicant submitted that for that reason, the Tribunal should be more inclined to accept that the allocation was unreasonable, citing Zhu v The Owners – Strata Plan No 51933 [2019] NSWCATCD 4 (Zhu) at [31(a)].
The applicant submitted that the history of the respondent’s consideration of and ultimate failure to bring about an alteration of the unit entitlements for Lots 31-34, as outlined above, and the “deleterious financial consequences to the applicant” which the applicant asserted had followed, justified the making of an order adjusting the unit entitlements for Lots 31-34 notwithstanding the substantial delay (34 years) between the registration of Strata Plan 37489 and the commencement of the proceedings.
The applicant noted that the periods of 22 and 23 years respectively during which unit entitlements had been in place had not prevented the adjustment of unit entitlements in Zhu and in Seeto v The Owners – Strata Plan No 49458 [2019] NSWCATAP 166.

Respondent’s submissions in chief

The respondent submitted that the Tribunal does not have the power to make any of the orders sought by the applicant.
The respondent submitted that the applicant sought to change the unit entitlements of each lot in the building, not just Lots 31-34.
The respondent submitted that a reduction in the aggregate unit entitlement from 1000 to 986, when the unit entitlement of each of Lots 3-25 and 27-30 was not altered, effected a change to the unit entitlement of each of those lots.
The respondent submitted that the Tribunal’s power to adjust unit entitlements only arises when the Tribunal finds that the original allocation was unreasonable at the time the strata plan of subdivision was registered or became unreasonable due to a change in the permitted land use. I note that the applicant does not rely on any change in permitted land use.
The respondent submitted that, to establish that the original allocation of unit entitlements was unreasonable, the applicant must tender evidence of the value of all lots at the time of registration of Strata Plan 37489. The respondent submitted that subs 236(4) of the SSMA requires the provision of a certificate specifying the valuation at the time of registration of Strata Plan 37489 of “each of the lots to which the application relates”.
The respondent submitted that Mr Azar’s report cannot meet that requirement because the certificate of valuation only specifies the value as at 18 September 1990 of Lots 31-34. The respondent also submitted that Mr Azar’s evidence does not provide any support for the submission that the unit entitlements of Lots 31–34 were unreasonable as at 18 September 1990.
The respondent further submitted that Mr Azar’s report was deficient in: failing to identify the source or dates of photographs; failing to identify the assumptions made or facts relied upon in respect of the condition of the lots in 1990; and in failing to fully explain his reasoning in respect of what he identified as comparable sales.
The respondent also challenged the applicant’s characterisation of the applicant’s proposed Order 2, being the order varying the aggregate unit entitlement, as an “ancillary order”, referring to the current provisions governing the allocation of unit entitlements in new strata plans and the definition of “valuation day” in Sch 2 to the SSDA.
The respondent submitted that purporting to make an order changing the aggregate unit entitlement pursuant to s 229 of the SSMA would contravene the principle expressed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 that:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

The respondent submitted that that principle:

“[M]eans that is not permissible to make an order varying the aggregate unit entitlements under the general order making power contained in s 229 of the Act as there is a particular power in s 236 for reallocating unit entitlements and particular powers within s 236(6) to make ancillary orders if an order to reallocate unit entitlements is made by the Tribunal.”

The respondent submitted that the alternative Order 3 proposed by the applicant was also beyond the power of the Tribunal, as an owners corporation has no power to vary unit entitlements by resolution, and the Tribunal cannot direct that an order take effect as a resolution of the owners corporation if the owners corporation would have no power to make such a resolution.

Applicant’s submissions in reply

In reply the applicant submitted that the respondent’s submissions “misunderstand the application” and “confuse the clear lines of the applicant’s submissions in chief”.
The applicant identified two questions concerning the interpretation of s 236 raised by the parties’ submissions in chief:

“(a) can s 236 entertain an application to reallocate unit entitlements for some but not all lots in a strata scheme; and
(b) if it can and if the application proposes to change the aggregate unit entitlement for the strata scheme, is valuation evidence required for all lots even if the unit entitlements of some of them are to be left unchanged.”

The applicant submitted:

“10 The provision is undoubtedly remedial or beneficial because it offers relief and redress to owners where there has been a misallocation of unit entitlements. Therefore, it ought to be construed beneficially in favour of owners who seek the relief and redress which the section offers. It follows that in the case of ambiguity, it ought to be construed in a manner favouring persons intended to benefit from the provision … [Citations omitted]
11 There is legislative intent in s 236 that it can apply when application is made for reallocation of unit entitlements for some but not all the lots in a strata scheme:
(a) the touchstone of unreasonableness in s 236(1)(a) applies not just to strata plans but also to strata plans of subdivision which invariably involve a lesser number of lots than all lots comprised in a strata scheme;
(b) the supporting valuation certificate called for in s 236(4) must be for each of the lots to which the application relates. If the legislature had intended that on application under s 236, all lots in a strata scheme would be required to [be] valued, it would have said so. Therefore, to the extent that there may be ambiguity or even lacuna in s 236(4), it ought to be resolved in favour of the applicant permitting the application to be founded on the valuation of the 4 lots in question”.

The applicant supported those submissions by reference to cl 4 of Sch 2 to the SSDA, which the applicant submitted permits limited valuation evidence where the unit entitlements of unaffected lots do not change.
The applicant further submitted that the respondent’s submissions confused “unit entitlement” with “aggregate unit entitlement”, submitting:

“[T]he cases dealing with s 236 and its predecessor disclose that when the Tribunal adjusts unit entitlements, the aggregate of unit entitlement invariably also changes as a necessary consequence but it is the reallocation of unit entitlements among the lots subject of the application that counts.”

The applicant did not identify the “cases dealing with s 236 and its predecessor” referred to in in that submission. It may be noted immediately that the submission is in any event not correct: see for example Isabella DIT Pty Ltd v The Owners – Strata Plan No 80988 [2015] NSWCATAP 210; Chehab Investments Pty Ltd v The Owners – Strata Plan No. 89670 [2025] NSWCATCD 28 (Chehab Investments) in which unit entitlements were adjusted but the aggregate unit entitlement did not change.
The applicant submitted that a requirement for the valuation of all lots would be “far too restrictive and undermines the facultative purpose of the section” and that “in the present circumstances it is impractical”.
The impracticality was said to arise from the fact that all lots other than Lots 31–34 were created on 29 November 1989 so that, by 18 September 1990, those lots would be expected to have “significant fit outs” installed, adding to their value. The applicant also submitted that the cost of valuation would be “burdensome, if not prohibitive”.
In respect of the respondent’s criticisms of the evidence of Mr Azar, the applicant submitted that the requirement of s 236 is that the certificate of value be provided, and that evidence of value is relevant but that the Tribunal is not limited to considering valuation evidence in determining whether to make an order under s 236. The applicant submitted:

“[I]n theory at least, if the valuation evidence falls short for whatever reason, that will not necessarily be fatal to an application if there are other matters establishing unreasonableness to the satisfaction of the Tribunal.”

The applicant further submitted that the respondent itself recognised the unfairness of the allocations made on registration of Strata Plan 37489.
In respect of Orders 2 and 3 in the Amended Application, the applicant submitted that:

An express order in terms of order 2 is not in fact necessary, the reduction in aggregate unit entitlements would flow from the reduction in the unit entitlements for Lots 31-34.

Order 2 “was sought as a backstop and then only if the Tribunal thought it necessary to make an express order amending the aggregate unit entitlements” and that reliance on s 229(a) is “strictly incidental … if considered necessary.”

The “natural and ordinary meaning of the words in [s 232(1)(a) is] sufficiently broad to permit the making of an order to reduce the aggregate unit entitlement if the Tribunal believes it necessary to do so.”

Consideration – Variation of Unit Entitlements

The approach the Tribunal is required to adopt to an application for the reallocation of unit entitlements under s 236 of the SSMA was discussed by the Tribunal in Chehab Investments, at [32] – [35]:

“32.    The Appeal Panel in The Owners – Strata Plan No. 675 v York & Edwards [2022] NSWCATAP 171 at [30] outlined that the accepted approach to be taken by the Tribunal in matters of this type is that set out in a number of propositions by Santow J in Anderson Stuart v Treleavan [2000] NSWSC 283 in respect of the Strata Schemes Management Act 1996 (NSW). See also per Sackville JA in Sahade v Owners Corporation SP 62022 [2014] NSWCA 208 at [62], [86]-[91]; and Seeto v The Owners Strata Plan No 49458 [2019] NSWCATAP 166, namely:
1.   A staged process is contemplated. First, the Tribunal must ascertain the respective values of the lots subject to the strata scheme.
2.   Secondly, the Tribunal must determine whether, having regard to the respective values of the lots at the time the strata plan was registered, the allocation of unit entitlements at that time was unreasonable.
3.    Thirdly, if the allocation was unreasonable at that time, the Tribunal must consider whether to make an order reallocating the unit entitlements among the lots subject to the strata scheme.

33. The effect of the expression ’have regard to’ in s 236 (2) is that the Tribunal must take the respective values of the lots into account as a ’fundamental element’ in determining whether the allocation of unit entitlements among the lots was unreasonable when the strata plan was registered. However, the respective value of the lots is not the exclusive consideration, and the Tribunal may have regard to other matters that show or tend to show that the allocation of unit entitlements among the lots was or was not unreasonable.
34. If the Tribunal finds that the original allocation of unit entitlements was unreasonable, it has power to vary the allocation, but is not bound to do so. Thus, it may take other relevant matters into account in determining whether an order should be made varying the original allocation of unit entitlements.
35. Finally, in respect of s.236(1)(b), the word unreasonable has no specific legal meaning in that context and so, in accordance with the rules of interpretation, assumes its everyday English meaning. Online dictionaries suggest that the word ‘unreasonable’ means ‘not fair or acceptable’, ‘not governed by or acting according to reason’ or ’not guided by or based on good sense’.

It is not in dispute that the applicant is eligible, as a lot owner, to make an application for an order pursuant to s 236 of the SSMA.
I have already indicated that I accept that Mr Azar is a “qualified valuer” for the purposes of subs 236(5). As evidenced by the certificate attached to his report, he is a member of the Australian Property Institute, that membership having been acquired in connection with his occupation as a valuer.
The requirement, before the Tribunal can make an order pursuant to s 236 in this case, is that:

“[T]he Tribunal considers that the allocation of unit entitlements among the lots … was unreasonable … when a strata plan of subdivision was registered”.

The order which the Tribunal can make is “an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order”.
In making such a determination the Tribunal is required (s 236(2)) “to have regard to the respective values of the lots and to such other matters as the Tribunal considers relevant”.
I accept the evidence of Mr Azar, as far as it goes. Notwithstanding its criticisms of that evidence, the respondent did not lead valuation evidence of its own or seek to cross examine Mr Azar.
However, I do not regard Mr Azar’s evidence as sufficient to meet the requirements of subs 236(4) or as providing any basis for the conclusion that the allocation of unit entitlements to Lots 31-34 on the registration of Strata Plan No 37489 was unreasonable.
The requirement for a certificate of value extends to “each of the lots to which the application relates”. I accept the respondent’s submission that that requirement extends to all lots whose unit entitlement as a proportion of the aggregate unit entitlement will be affected. The requirement for a certificate of valuation would be pointless if it was required to certify the value of only a limited number of lots the unit entitlement of which is intended to be reduced.
I accept that, where it is suggested that a discrete group of lots the subject of a distinct strata plan of subdivision have unit entitlements allocated unreasonably between them, but it is not suggested that the total unit entitlement of those lots together, as a proportion of the aggregate unit entitlements of the strata scheme as a whole, is unreasonable, it would not be necessary to value any lots other than those within the discrete group the subject of an application for reallocation.
In other words, if the applicant’s case was that the unit entitlements of Lots 33 and 34 were excessive compared to the unit entitlements of Lots 31 and 32, and the applicant only sought the adjustment of the unit entitlements of Lots 33 and 34 downwards and Lots 31 and 32 upwards by the same number, Mr Azar’s valuation certificate could satisfy the requirements of s 236(4).
But that is not the application the applicant brings.
It follows that the application seeking the reallocation of unit entitlements does not comply with the requirements of s 236(4) and must therefore be dismissed.
I note that, in any event, s 236(2) requires the Tribunal, in making a determination in relation to the allocation of unit entitlements under s 236, to “have regard to the respective values of the lots”. As the authorities referred to in Chehab Investments make plain, the respective values of the lots is a “fundamental element” in determining whether the application of unit entitlements is unreasonable.
If the Tribunal is to have regard to the respective values of the lots in determining the appropriate adjustment of unit entitlements it must have evidence of the value of all lots by reference to which the unit entitlement of the “affected lots” is to be assessed. The applicant relies, in arguing for the adjustment of unit entitlements for Lots 31-34, on the unit entitlements allocated to other lots in the building. Although the applicant explicitly purports to rely only on the fact that the total unit entitlement of Lots 31-34 is the same as the former unit entitlement of Lot 26, notwithstanding that the area of Lots 31-34 is less than that of Lot 26 by reason of the excision of common property, the appropriate adjustment to unit entitlements cannot be determined without reference to the value of other lots.
The Tribunal cannot consider the appropriate allocation of unit entitlements to Lots 31-34 without evidence of the value of the lots to which they are to be compared. This proposition was recognised in Gary Bugden, Strata Title Management Practice in New South Wales (6^th ed,1993, CCH Australia Ltd) at par 1925:

“The application must be accompanied by a certificate by a valuer specifying the valuation, at the relevant time, ‘of each of the lots to which the application relates’ (sec. 119(2)). Because the Board must consider all the lots in the strata scheme before being in a position to make an order, the valuation certificate would need to cover all lots. It seems most unlikely that the valuation certificate could be restricted merely to the lots in respect of which unit entitlements are proposed to be changed, if for no other reason than additional evidence would be required at the hearing in any event.”

The learned author was referring in that passage to s 119 of the Strata Titles Act 1973, as in force in 1993, but the provisions were in similar terms and the critical wording was identical.^[2]
2. Section 119 of the Strata Titles Act 1973, as in force in 1990, provided:
The applicant submits that the impact on other lots of the adjustment of unit entitlements which it seeks is “de minimis”. It calculates that the “liability for common expenses borne by the other lot owners will increase by 1.4%”. I do not accept that that adjustment is de minimis, that is so negligible that it may be ignored. It is not zero. Nor, in my view, is it trivial.
The applicant suggests no basis for determining when an increase in the proportionate interest of other lot owners ceases to be marginal, trivial or de minimis.
The applicant seeks to reduce the obligations of Lots 31-34 at the expense of all other lot owners. It cannot justify that outcome on the basis that the burden of additional expenses is not large.
The applicant’s suggestion, that the allocation of unit entitlements to Lots 31-34 on the registration of Strata Plan No 34789 may have proceeded by reference to s 10 of the Strata Titles Act 1973 rather than s 11, does not advance the applicant’s argument. Regardless of whether it was the case that the strata plan of subdivision was adopted on an incorrect understanding of the applicable provision, the Tribunal’s jurisdiction to reallocate entitlements is governed by s 236.
The fact that the allocation of unit entitlements by Strata Plan No 37489 was effected by Fobone Pty Ltd does not establish that the original allocation was unreasonable. To establish that proposition, valuation evidence comparing Lots 31-34 to other lots would be essential.
The fact that the respondent’s strata committee and general meetings of the respondent had passed resolutions consistent with the outcome the applicant now seeks does not establish that the allocation was unreasonable or that the respondent was bound to bring about the alteration of unit entitlements.

The “deleterious financial consequences” to the applicant referred to in its submissions could be established only if it were first shown that the allocation of unit entitlements is unreasonable. In the absence of the necessary valuation evidence, no deleterious financial consequences can be established.
It may also be noted that the applicant acquired Lots 33 and 34 after the registration of Strata Plan No 37489. Accordingly, it must be taken to have been fully aware of the share of the expenses of the respondent which it would be obliged to pay.
The applicant’s suggested characterisation, in its reply submissions, of s 236 as “remedial or beneficial” legislation is neither accurate nor relevant to the interpretation of s 236.
In The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 at [62], Leeming JA expressed agreement with the following statement in P Herzfeld and T Prince, Interpretation (Thomson Reuters, 3^rd ed, 2024) at par [10.300]:

“Further, not every provision within a generally remedial or beneficial Act has a remedial or beneficial purpose: it is necessary to focus on the purpose of the particular provision and, if it is neither remedial nor beneficial, the principle presently under discussion does not apply. An exception or limitation to a beneficial provision does not necessarily require a liberal or beneficial interpretation. And even if the purpose of a provision is beneficial, that may be a proposition stated at too general a level to assist in determining how or to what extent that purpose is pursued by a particular provision.” [Citations omitted, original emphasis]

There is no reason why s 236 should be construed beneficially in favour of any applicant for an order for the reallocation of unit entitlements. The section is intended to provide a mechanism to rectify a misallocation of unit entitlements which has occurred, for whatever reason. Any reallocation will advantage some lot owners and disadvantage others, there is no reason why the provision should be interpreted in favour of those who seek to be advantaged.
If anything, the objects of the section should require neutrality between those seeking adjustment and those opposing.
The applicant’s submission in reply relying upon cl 4 of Sch 2 to the SSDA ignores the fact that the predecessor to s 236 of the SSMA, s 183 of the Strata Schemes Management Act 1996 (NSW) (SSMA 1996), was in relevant respects identical to s 236 of the SSMA. There is no reason to construe a provision which predated the enactment of the SSDA in 2015 by reference to a new provision inserted in the SSDA in 2015.
The practical issues raised by the applicant, regarding the difficulty and cost of valuing all lots, do not provide any justification for construing s 236 other than as requiring the valuation of all lots whose proportion of the total unit entitlements would be altered by a proposed reallocation. The fact that the installation of fit outs to lots other than Lots 31-34 might have affected the value of those lots by the time of registration of Strata Plan No 37489 is a reason why the valuation of all lots at that date is necessary, rather than a reason why it should not be required. The fact that Mr Azar was able to value Lots 31-34 as at September 1990 might be taken as evidence that the valuation of the other lots in the building would also have been possible.
The applicant provided no evidence of the cost of valuing all lots. Even assuming that the cost would be “prohibitive”, in the sense of likely to exceed the value of the reduction in unit entitlement which the applicant seeks, s 236 does contain an answer to that difficulty. Subsection 236(6) provides that, in the event that the Tribunal makes an order reallocating unit entitlements pursuant to that section, it may also make an ancillary order that the original owner pay the applicant the costs of the application, including the costs incurred in obtaining a valuation. “Original owner” is defined in s 4 of the SSMA, in respect of a freehold strata scheme, as “the person who held the fee simple in the parcel the subject of that scheme when the strata plan for the scheme was registered”. In this case that would appear to be Fobone Pty Ltd.
Contrary to the advice given to the strata committee by Ms Crittenden in March 2021, the Tribunal’s power to order the original owner to pay the costs of an application is not limited to the first six years after the registration of a strata plan or strata plan of subdivision.
However, Fobone Pty Ltd is not a party to this application and it would not be appropriate to speculate further regarding its potential liability if the applicant had obtained evidence of the value of all lots in the strata scheme as at the date of registration of Strata Plan No 37489 and established that the allocation of unit entitlements at that date was unreasonable.
Because I have concluded that I should not make an order pursuant to s 236 allocating unit entitlements, it is not necessary to consider whether the Tribunal has power either pursuant to par 229(a) or par 232(1)(a) to make Orders 2 and/or 3 in the Amended Application.

The claim for compensation

The applicant’s submissions

I note that, in its submissions in reply, the applicant specifically stated that, even if the Tribunal declined to make an order allocating unit entitlements, it nevertheless pressed its claim for Orders 6 – 10 in the Amended Application, that is the orders for the payment of damages and associated orders, on the basis that:

“The application for reallocation of unit entitlements supported by the plenary valuation evidence for which the respondent contends, ought to have been made by the respondent shortly after the special resolution was passed on 13 June 2013 and affirmed several times thereafter.”

The applicant founded its claim for compensation upon s 232 of the SSMA which empowers the Tribunal to make orders to settle complaints or disputes concerning the matters enumerated in subs 232(1).
The applicants acknowledged, referring to the Appeal Panel decision in Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315, that, to obtain orders for compensation pursuant to s 232, the applicant needed to identify a cause of action.
The applicant relied upon two alleged causes of action:

“(a) a tortious claim for breach by the respondent of statutory duty owed to the applicant;
(b) a tortious claim for breach by the respondent of its duty to the applicant at general law to exercise reasonable care and skill in the administration of the strata scheme.”

The applicant’s claim for breach of statutory duty was said to arise from s 8(2) of the SSMA 1996 (the legislation governing the management of the strata scheme in 2013), which:

“[I]mposed upon on the respondent principal responsibility for management of the scheme concordantly with the overarching object of the legislation under s 3 which required the respondent effectually to resolve disputes arising in connection with management of the scheme.”

Subs 8 (2) of the SSMA 1996 provided:

(2) An owners corporation for a strata scheme has the principal responsibility for the management of the scheme.

The objects of the SSMA 1996, as set out in s 3 were:

(a) to provide for the management of strata schemes created under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, and
(b) to provide for the resolution of disputes arising in connection with the management of strata schemes.

The applicants submitted:

“46 Discharge of this statutory duty required the respondent properly to inform itself of that which was required to give legal force and effect to the 2013 special resolution which could only then have been achieved by making application to the Tribunal under s 183 1996 SSMA for an order re-allocating unit entitlements.
47 The respondent failed to do this even though in general meeting on 20 April 2015, the respondent resolved in a manner confirmatory of the 2013 special resolution to reduce the unit entitlements of level 8 lots ...”

The applicant submitted that the duty which it asserted lay upon the respondent was preserved and continued under the SSMA upon its coming into force on 30 November 2016, and submitted that the duty arising under subs 9(1) of the SSMA, which corresponded with subs 8(2) of the SSMA 1996, was extended by subs 9(2) which provided that the owners Corporation “has, for the benefit of the owners of lots in the strata scheme… (b) the administration of the strata scheme”.
The applicant further submitted:

“50 Once again, to discharge this statutory duty in the context of the overarching object of the legislation expressed in s 3 SSMA which was to provide for effectual resolution of disputes arising from the strata scheme, the respondent was required properly to inform itself of that which it was required to do to give legal force and effect to the 2013 and 2015 resolutions. Under SSMA, the respondent was required to apply to the Tribunal pursuant to s 236 for an order relocating unit entitlements.”

The applicant relied upon the undoubted proposition that the Court of Appeal in Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 held that s 232 empowered the Tribunal to award damages for breach of statutory duty where such breach is actionable at common law. The applicant submitted:

“62 This conclusion is further reinforced by one other relevant consideration. The legislature’s emphasis in s 9(2) SSMA that an owners corporation’s duty with respect to administration of a scheme is for the benefit of owners read in the context of the broad remedial powers under s 232 SSMA supports the construction that a breach of duty under s 9(2) and its correlative duty under s 9(1) is actionable by owners when loss or damage ensues. This is consistent with the joint judgment of the majority of the High Court in Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 424; [1995] HCA 24:
‘A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage.’”

In relation to its claim in respect of the alleged breach of duty of care, the applicant submitted:

“63 The failure of the respondent to give legal force and effect to the 2013 and 2015 resolutions also constituted breach of its general law duty to exercise reasonable care and skill in the discharge of its functions so as not to cause financial harm and loss to level 8 owners.”

The applicant acknowledged that liability for negligence at common law is now governed by Part 1A of the Civil Liability Act 2002 (NSW). In that regard, the applicant submitted:

“66    The applicant submits that the elements of an action in negligence against the respondent in the circumstances of this matter are satisfied and, in particular, the applicant has discharged the civil onus of proof which it bears regarding the issue of causation:
(a)   the respondent failed to exercise reasonable care and skill properly to inform itself of that which was required under both 1996 SSMA and SSMA to give legal force and effect to the 2013 and 2015 resolutions;
(b)   in so doing, the respondent exposed level 8 owners to harm by way of financial loss arising from having to pay higher levies than would have been payable had the unit entitlements been amended as the respondent resolved;
(c)   the risk of financial loss was plainly foreseeable to the respondent as an inevitable consequence of leaving the unit entitlements unchanged;
(d)   a reasonable person in the position of the respondent would not have so acted;
(e)   the respondent’s conduct factually caused the financial loss suffered by level 8 owners;
(f)    in light of the critical central role played by an owners corporation in the management and administration of strata schemes and the imperative of observing, upholding and implementing lawful resolutions of its members to preserve both the integrity of schemes and harmony between owners, it is, in the applicant’s submission, singularly appropriate for the respondent’s liability in this case to extend to apply to financial loss suffered by the applicant as one of the level 8 owners;
(g)    to find otherwise would be to countenance, rather than to deprecate, conduct on the part of the respondent which disregarded and failed to implement by required further action lawfully made decisions of the owners in general meeting. There is no sound reason as a matter of policy or otherwise to curtail the scope of liability so as to exculpate the respondent on the facts of this matter.”

The applicant acknowledged the decision of the Appeal Panel in Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCATAP 222 (Trentelman) at [32 (1)] and [61] which stated:

“32 The Tribunal found that it would not have exercised the discretion to make the orders sought by Ms Trentelman for the following reasons:
(1) the owners corporation, while having standing to do so under both the SSMA 1996 (the Act relevant to the period prior to 30 November 2016) and SSMA 2015, was under no obligation to make an application for the reallocation of unit entitlements in the scheme;

…
61 In any event, as the owners corporation points out, the subdivision which resulted in the current configuration of the scheme was registered on 21 July 2015 but Ms Trentelman took no action in the Tribunal for three years to obtain a reallocation of unit entitlements. Furthermore, any such reallocation was dependent upon a valuation being obtained and she took no steps until 2018 to obtain such a valuation. We agree with the Tribunal that, while the owners corporation may have had some sympathy for her situation, it was under no legal obligation to take the necessary steps itself.”[Emphasis added]

The applicant sought to distinguish that that decision on the basis that in this case the respondent had passed the special resolutions of 13 June 2013 (see [24] above) and 20 April 2015 (see [26] above).
The applicant maintained that its causes of action were not barred by the Limitation Act 1969 (NSW) s 14(1) because:

“[T]he causes of action relied upon by the applicant … only accrued on 30 November 2016 [when the SSMA came into force] because it was only then that a claim for damages could be made in the Tribunal. “

The applicant also submitted that the respondent had confirmed the applicant’s “rights arising under and pursuant to the 2013 and 2015 resolutions” within the meaning of s 54 of the Limitation Act by the resolution passed at the Annual General Meeting on 27 November 2019 (see [29] above), by correspondence from the chairman and treasurer of the strata committee in October and December 2020, and by the resolution of the strata committee of 30 March 2021 (see [34] above).
In the alternative, to the extent that the claim was statute barred in respect of Lot 34, the applicant sought to maintain its claim in respect of Lot 33, on the basis that the applicant only acquired Lot 33 on 23 April 2021.

The respondent’s submissions

The respondent submitted:

Section 236(6) makes specific provision for the award of damages in the event the Tribunal makes an order for the reallocation of unit entitlements. There is no reason why the Tribunal should have any further jurisdiction to award damages in respect of the allocation of unit entitlements; and

The resolution passed on 13 June 2013 was beyond the power of the respondent, and accordingly, imposed no obligation upon the respondent.

The respondent further submitted that the applicant has been, at all times since it acquired Lot 34 in 1990, entitled to apply for the reallocation of unit entitlements, and has not explained why it failed to do so until 2024.

Applicant’s submissions in reply

In reply, the applicant submitted:

“[T]he respondent misunderstands the significance of this special resolution [of 13 June 2013] which incidentally remains extant. The special resolution imposed statutory and general law duties on the respondent to do all that was necessary to give legal force and effect to it which in 2013 required the respondent to apply under s 183 of the Strata Schemes Management Act, 1996 (NSW) ….”

In response to the respondent’s submission that the applicant has failed to explain why it failed to make its own application under s 236, the applicant submitted that “delay is no bar to the making of the application” and that:

“[T]he respondent’s conduct since 2013 … repeatedly led the applicant to believe that the matter was in hand and the anomaly would be corrected.”

Consideration

Breach of Statutory Duty

In my view there was no obligation on the respondent to seek an order for the reallocation of unit entitlements. The Appeal Panel decision in Trentelman is clear authority that no such duty exists.
The fact that the lot owners passed resolutions in general meeting to amend the unit entitlements did not impose any obligation on the respondent to make an application to the Tribunal for an order to that end.
The applicant’s submissions hinge upon the suggestion that the respondent had a statutory duty:

To understand the procedures required to vary unit entitlements; and

To pursue those procedures.

I do not accept that the passing of resolutions which erroneously purported to accomplish a result which could not be achieved by resolution (or special resolution), imposed an obligation upon the respondent to identify and pursue an alternative means of achieving that result.
I do not accept that s 8 of the SSMA 1996 or s 9 of the SSMA, alone or in combination with the statement of objects in s 3 of each Act, imposed upon an owners corporation any duty enforceable by action for breach of statutory duty.
The question whether a statutory provision imports a private right of action in respect of breach is a matter of statutory construction: O’Connor v S P Bray Ltd (1937) 56 CLR 464; [1937] HCA 18 at 477 – 8 per Dixon J; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 424 per Brennan CJ, Dawson and Toohey JJ.
In McDonald t/as B E McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Reports 81–768 McColl JA, with whom Beazley JA and Young CJ in Eq agreed, held, at [177]:

“177 Regulation 19(g) is in a different category. It prescribes the end but not the means. It does not identify any specific precaution or measure which the occupier is to take for the safety of others. It is a blanket prohibition on doing the act in question. It does not tell the occupier what measures must be taken: cf Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629 at 641. In my view, the absence of identification of specific precautions means that reg 19(g) should not be construed as conferring a correlative private cause of action on Girkaid and Inghams.”

That passage was cited by the ACT Court of Appeal in D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27, at [110], as authority for the proposition:

“110 It may be the case that a provision prescribes the end but not the means. If the provision does not identify any specific precaution or measure which an occupier should take for the safety of others, it should not be construed as conferring a private cause of action …”.

The applicant cited no authority to support the submission that a provision imposing a general responsibility, such as s 8 of the SSMA 1996 and s 9 of the SSMA, may be construed as supporting a private right of action for a failure to fulfil that general responsibility.
In my view it would be entirely inconsistent with the principles of construction, applicable in determining whether the creation of a statutory duty is accompanied by a private right of action for its breach, to hold that the respondent might be held liable to a lot owner for breach of the “obligation” to have “principal responsibility for the management of the [strata] scheme”. That proposition is not affected by the inclusion in s 9(2) of the SSMA of the provision that an owners corporation has the administration of the strata scheme “for the benefit of the owners of lots” in the scheme.

Negligence

I do not accept that the respondent owed the applicant a duty of care to bring about the outcomes sought to be achieved by the resolutions of 13 June 2013 and 20 April 2015, or to take steps to identify whether the resolutions were effective to achieve those outcomes and, if not, how the outcomes might be achieved.
The applicant was capable of undertaking those tasks itself, it led no evidence to suggest that it was dependent upon the respondent to do so. For that reason, the failure of the respondent to bring an application for the reallocation of unit entitlements was not a necessary condition for the applicant’s payment of strata levies greater than it would have paid if unit entitlements had been reallocated: vide s 5D(1)(a) of the Civil Liability Act.
There is no good reason why, in a context where the applicant was itself capable of taking steps to avoid the economic loss it asserts the respondent caused, the respondent should bear responsibility for that loss: vide s 5D(2) and (4) of the Civil Liability Act.
I am not persuaded that a reasonable owners corporation in the respondent’s position in 2013, or at any time up to 2024, would necessarily have taken the steps which the applicant suggests it should have taken to bring about a reallocation of unit entitlements or reduce the burden of strata levies on the applicant: vide s 5B(1)(c) of the Civil Liability Act.
The applicant suggested that the respondent’s conduct dissuaded it from taking action itself, but the applicant led no evidence to that effect. Save in one irrelevant instance, Mr Saffo did not in his affidavit give any evidence concerning the belief or understanding of the applicant or its reasons for taking or failing to take any action. The one instance was in par 43 of Mr Saffo’s affidavit where he stated that the applicant had filed an application in the Tribunal in September 2022 seeking a refund of levies pursuant to s 87 of the SSMA but had withdrawn that application upon becoming aware of the decision in Quo Warranto Pty Ltd v Goodman which had made it clear that s 87 did not empower the Tribunal to “vary contributions as between owners”.

Limitation period

The Appeal Panel in White House Developments Pty Ltd v The Owners - Strata Plan No 70276 [2025] NSWCATAP 68 (White House Developments) concluded, at [124]-[131] that the Limitation Act was not applicable to claims brought in the Tribunal pursuant to the SSMA and that the time within which proceedings may be commenced in the Tribunal for claims at common law (in that case nuisance) is regulated by r 23(3)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules).
Rule 23(3) of the NCAT Rules provides:

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—
(a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or
(b) in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

On any view, the application in these proceedings was not filed within 28 days of the applicant becoming entitled to make the application.
If I had accepted that the applicant did have a cause of action against the respondent either for breach of statutory duty or in negligence, it would have been necessary to determine whether the time for the applicant to commence proceedings in respect of that cause of action should be extended pursuant to s 41 of the NCAT Act.
The applicant did not seek an extension of time. However, it may be that, because the submissions in this matter were complete before the publication of the decision in White House Developments (on 2 April 2025), the parties did not contemplate the possibility that rule 23(3)(b) might be the relevant provision governing the time for commencement of proceedings for breach of statutory duty or in negligence.
The Tribunal may grant an extension of time of its own motion but, before doing so, procedural fairness would require that the parties have an opportunity to be heard, and it would be necessary to seek further submissions from the parties.
Because I have concluded that the respondent would have had no liability to the applicant either for breach of statutory duty or in negligence even if proceedings had been commenced within the relevant limitation period, I do not consider it necessary to give further consideration to the question whether to grant an extension of time and will not further delay the delivery of these reasons for decision by seeking submissions in that regard.
I note, nevertheless, that in my view it is clear that, if s 14(1) of the Limitation Act had been applicable, any claim by the applicant would be barred by that provision and would have been barred since six years after the meeting of 13 June 2013 (or rather the first date thereafter when a notice of strata levies was issued to the applicant, which must have occurred during 2013). Likewise, any claim arising in respect of the 2015 resolution would have been barred from six years after the first notice of strata levies issued after 20 April 2015.
I also note that, if rule 23(3)(b) were not applicable to common law claims brought in the Tribunal against an owners corporation, the fact that jurisdiction to make orders for compensation in relation to disputes arising under the strata titles legislation was only conferred on the Tribunal in 2016 would not mean that any cause of action which the applicant may have had in respect of conduct of the owners Corporation in 2013 or 2015 was not barred six years after it arose. The applicant’s submissions to the contrary confuse the accrual of a cause of action with the availability of a remedy in the Tribunal.
I am not persuaded that the respondent at any time confirmed any obligation to the applicant within the meaning of s 54 of the Limitation Act. The resolution passed at the Annual General Meeting on 27 November 2019 purported to require the strata manager to invoice the owners of Lots 4 and 6 for the benefit of the owners of Lots 31-34. That was not an acknowledgment of liability on the part of the respondent. Correspondence from the chairman and treasurer could not bind the respondent unless pursuant to a resolution of the strata committee or general meeting, and the resolution of the strata committee on 30 March 2021 explicitly noted that the respondent may decide not to proceed with an application for reallocation of unit entitlements and “consideration of obtaining advice about paying compensation to Level 8 Lot Owners” was deferred. There is no acknowledgment in those resolutions of any rights of Level 8 Lot Owners to fulfilment of any obligation to seek a reallocation of unit entitlements or of any liability to compensation for not having done so.
Even if, which I do not accept, the respondent had a duty to lot owners from time to time to seek to carry out the intention of the 2013 or 2015 resolutions, that duty did not inure to the benefit of the applicant, independently of any claims the applicant might previously have had by reason of its ownership of Lot 34, upon acquisition of Lot 33 on 23 April 2021.
The fact that any cause of action would, if brought in a Court, have been statute barred by the time the applicant brought proceedings in the Tribunal would be a strong factor militating against any extension of time for the commencement of proceedings pursuant to s 41 of the NCAT Act.

Causation

In order to establish an entitlement to damages for any breach of duty by the respondent, the applicant would need to establish, on the balance of probabilities, that the respondent’s breach of duty had caused it loss. In the absence of evidence of the value of all lots at the date of registration of Strata Plan of Subdivision No 37489, it is not possible to conclude that an application brought by the respondent for the allocation of unit entitlements pursuant to s 236 of the SSMA (or s 183 of the SSMA 1996) would have succeeded in varying unit entitlements within the strata scheme or that the unit entitlements would have been varied in the manner in which the applicant now submits they should have been varied.
Moreover, there is no evidence to indicate whether the price paid by the applicant for Lot 33 was affected by the level of unit entitlements allocated to that lot, so that the applicant was able to acquire the lot for a lower price than it might have paid if the unit entitlements had been varied in the manner that the applicant suggests. In other words, there is no evidence that the applicant has not in fact been advantaged by the fact that the unit entitlements had not been altered between 2013 and 2021.
In the absence of evidence that the acts or omissions of the respondent, which the applicant alleges constituted an actionable breach of duty, caused the applicant any economic loss, the Tribunal could not conclude that the respondent had any liability to the applicant.
The applicant has not established any entitlement to damages and accordingly, Order 6 in the Amended Application will not be made. It is not necessary to consider Orders 7 or 9.

Conclusion

It follows that the application must be dismissed.

Costs

The respondent has sought to be heard on costs. The applicant’s submissions acknowledge that rule 38 of the NCAT Rules applies to these proceedings, as the amount sought by the applicant exceeds $30,000. Accordingly special circumstances are not necessary before the Tribunal may make an award of costs.
The respondent has been wholly successful in the proceedings and is presumptively entitled to its costs.
I will order the applicant to pay the respondent’s costs of the application as agreed or assessed. I will grant leave to the respondent to file submissions seeking a different order if so advised and make provision for the applicant to respond.

orders

My orders are:

Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the application is dispensed with.

The application is dismissed.

Subject to Order (4) below, the applicant is to pay the respondent’s costs of and incidental to the application as agreed or assessed.

If the respondent seeks a different order in respect of the costs of the application, it may, within 14 days of the date of publication of these orders, file in the Tribunal and serve upon the applicant submissions of no more than 5 pages and any evidence in support of a different order, in which event Order (3) shall cease to have effect.

If the respondent files submissions in accordance with Order (4) the applicant shall, within 28 days of the date of publication of these orders, file in the Tribunal and serve on the respondent submissions of no more than 5 pages and evidence in response.

Submissions filed in accordance with Orders (3) and (4) must indicate whether an oral hearing on costs is sought, and if so, why.

Subject to consideration of the submissions filed by the parties the Tribunal may determine any further issue of costs on the basis of the written submissions and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

**********

Endnotes

Order for reallocation of unit entitlements

119. (1) Where, pursuant to an application by a proprietor or a body corporate for an order under this section, a Board considers that the allocation of unit entitlements among the lots the subject of the strata scheme concerned was, at the time the strata plan was registered or at the time any strata plan of subdivision was registered, as the case may be, unreasonably made, having regard to the respective values of the lots at that time and, if a development statement is in force in relation to the strata scheme, such other matters as the Board considers to be relevant, the Board may make an order allocating unit entitlements among the lots in the manner specified in the order.

(2) An application under subsection (1) shall be accompanied by a certificate specifying the valuation at the time of registration of the strata plan or, as the case may be, the strata plan of subdivision, of each of the lots to which the application relates, being a certificate given by the holder of a current certificate of registration under the Valuers Registration Act 1975 as practising real estate valuer.[Emphasis added]

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

Registrar

Decision last updated: 18 September 2025

Medium Neutral Citation:	Sydney Gold Bullion Exchange Pty Ltd v The Owners – Strata Plan No 34794 [2025] NSWCATCD 69
Hearing dates:	11 Sep 2024
Date of orders:	28 July 2025
Decision date:	28 July 2025
Jurisdiction:	Consumer and Commercial Division
Before:	D Robertson, Principal Member
Decision:	(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the application is dispensed with. (2) The application is dismissed. (3) Subject to Order (4) below, the applicant is to pay the respondent’s costs of and incidental to the application as agreed or assessed. (4) If the respondent seeks a different order in respect of the costs of the application, it may, within 14 days of the date of publication of these orders, file in the Tribunal and serve upon the applicant submissions of no more than 5 pages and any evidence in support of a different order, in which event Order (3) shall cease to have effect. (5) If the respondent files submissions in accordance with Order (4) the applicant shall, within 28 days of the date of publication of these orders, file in the Tribunal and serve on the respondent submissions of no more than 5 pages and evidence in response. (6) Submissions filed in accordance with Orders (3) and (4) must indicate whether an oral hearing on costs is sought, and if so, why. (7) Subject to consideration of the submissions filed by the parties the Tribunal may determine any further issue of costs on the basis of the written submissions and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords:	LAND LAW – Strata title – Strata plan – Unit entitlements – Strata Schemes Management Act 2015 (NSW) s 236 – Order allocating unit entitlements – Requirement for certificate of valuation – Whether certificate required to value all lots or only those whose unit entitlement is proposed to be changed – Whether a lot is a “lot to which the application relates” if its unit entitlement does not change but the aggregate unit entitlement of all lots is reduced LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for breach of statutory duty – Strata Schemes Management Act 2015 (NSW) s 9 – Extent of the statutory duty arising from the conferral of responsibility for the management of a strata scheme LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for negligence – Extent of an owners corporation’s duty of care to lot owners in relation to the management of the strata scheme LAND LAW – Strata title – Time-limit for commencement of applications in the Civil and Administrative Tribunal by lot owners seeking damages for breach of statutory duty or negligence against the owners corporation – Civil and Administrative Tribunal Rules 2014 (NSW) rule 23(1)(b)
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) r 23 Civil Liability Act 2002 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) ss9, 236 Strata Schemes Management (Miscellaneous Amendments) Act 1996 (NSW) Strata Titles Act 1973 (NSW)
Cases Cited:	Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Chehab Investments Pty Ltd v The Owners – Strata Plan No. 89670 [2025] NSWCATCD 28 D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27 Isabella DIT Pty Ltd v The Owners – Strata Plan No 80988 [2015] NSWCATAP 210 McDonald t/as B E McDonald Transport v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Reports 81–768 O’Connor v S P Bray Ltd (1937) 56 CLR 464; [1937] HCA 18 Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315 Seeto v The Owners – Strata Plan No 49458 [2019] NSWCATAP 166 The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCATAP 222 Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 White House Developments Pty Ltd v The Owners - Strata Plan No 70276 [2025] NSWCATAP 68 Zhu v The Owners – Strata Plan No 51933 [2019] NSWCATCD 4
Texts Cited:	Gary Bugden, Strata Title Management Practice in New South Wales (6th ed,1993, CCH Australia Ltd) P Herzfeld and T Prince, Interpretation (Thomson Reuters, 3rd ed, 2024)
Category:	Principal judgment
Parties:	Sydney Gold Bullion Exchange Pty Ltd (Applicant) The Owners – Strata Plan No 34794 (Respondent)
Representation:	Solicitors: Kanjian & Company (Applicant) Jane Crittenden, Lawyer (Respondent)
File Number(s):	2024/00222919