The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd (No 2)

Case •

[2025] NSWLEC 28

•

02 April 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd (No 2) [2025] NSWLEC 28
Hearing dates: 2 July 2024, 26 March 2025
Date of orders: 26 March 2025
Decision date: 02 April 2025
Jurisdiction:Class 3
Before: Pritchard J
Decision:

See orders at [96]

Catchwords:

LAND LAW — strata title — strata renewal plan for redevelopment — Strata Schemes Development Act 2015 (NSW) — one dissenting owner not a party to the proceedings — strata renewal plan given effect

Legislation Cited:

Land and Environment Court Act 1979 (NSW) s 19

Strata Schemes Development Act 2015 (NSW) ss 3, 153, 154, 156, 157, 158, 160, 161, 162, 172, 173, 174, 177, 179, 181, 182, 183, 185, Sch 7

Strata Schemes Management Act 2015 (NSW) s 31

Strata Schemes Development Regulation 2016 (NSW) cll 27, 28, 30, 31, 33, 34, 35

Sydney Local Environmental Plan 2012 (NSW) cl 6.21

Cases Cited:

Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111

Martin v Commonwealth (1975) 7 ACTR 1

The Owners – Strata Plan No. 20548 v Mount Street 4 Pty Ltd atf Mount Street 4 Unit Trust and Anor [2024] NSWLEC 3

Quest Rose Hill Pty Ltd v White [2010] NSWSC 939

Category:Principal judgment
Parties: The Owners-Strata Plan 934 (Applicant)
T&P Chimes Development Pty Ltd (First Respondent)
Cubile Pty Ltd (Second Respondent)
Diana Dolores Mullins (Third Respondent)
John Rogers (Fourth Respondent)
Graeme Noel Curry (Fifth Respondent)
Lydia Katey Dimarco (Sixth Respondent)
Alfio Gerard Dimarco (Seventh Respondent)
Lawrence Michael Lutteral (Eighth Respondent)
Robert Villamaria (Ninth Respondent)
Christina Villamaria (Tenth Respondent)
Philip Sean Jirman (Eleventh Respondent)
Anthony David Godfrey Corp (Twelfth Respondent)
Judith Margaret Corp (Thirteenth Respondent)
FBIR Holdings Pty Ltd (Fourteenth Respondent)
Maryanne Dajkovich (Fifteenth Respondent)
Michael James Reed (Sixteenth Respondent)
EB 9 & 10 Pty Ltd (Seventeenth Respondent)
Barbara Lynn Schmidt (Eighteenth Respondent)
Peter William Cudlipp (Nineteenth Respondent)
Kathleen Anne Hackett (Twentieth Respondent)
R C Minter Superannuation Pty Ltd (Twenty-first Respondent)
Representation:

Counsel:
J McKelvey (First Respondent)
C Leggat SC and M Astill (Second to Twentieth Respondents)

Solicitors:
Project Lawyers (Applicant)
Dentons (First Respondent)
Bugden Allen Graham Lawyers (Second to Twentieth Respondents)
No Appearance (Twenty-first Respondent)
File Number(s): 2023/313769
Publication restriction: Nil

JUDGMENT

Introduction

  1. This matter concerns a Class 3 application filed on 3 October 2023 by The Owners–Strata Plan 934 (the applicant) with the support of T&P Chimes Development Pty Ltd (the first respondent) (the owner of a majority of lots in Strata Plan 934) (the original Class 3 application). The applicant seeks orders pursuant to s 182(1) of the Strata Schemes Development Act 2015 (NSW) (SSD Act) to give effect to the strata renewal plan for the redevelopment of Strata Plan 934 dated 2 March 2023 (the strata renewal plan) prepared for the property comprising lots 1 to 107 and common property in Strata Plan 934, being the whole of the property known as 45-53 Macleay Street, Potts Point, NSW 2011 (the building), and other consequential orders. Strata Plan 934 comprises 80 residential lots and 27 utility lots (car spaces).

  2. At the hearing of the matter on 2 July 2024, preliminary issues arose in relation to the variation of the strata renewal plan prior to the Court’s determination of the original Class 3 application to give effect to the strata renewal plan.

  3. On 25 February 2025, I delivered judgment dealing with the variation of the strata renewal plan: The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd [2025] NSWLEC 9 (the first judgment).

  4. In the first judgment, I made the following orders (the 25 February 2025 orders):

(1) The applicant, in order to satisfy the requirement in s 182(3)(b) of the Strata Schemes Development Act 2015 (NSW) (SSD Act) to seek from owners of each lot in relation to which a support notice has been given, within the meaning of s 174(1) of the SSD Act, for the strata renewal plan for the redevelopment of Strata Renewal Plan 934 dated 2 March 2023 (the strata renewal plan) written agreement to a variation to Annexure B to the strata renewal plan in relation to lot 19 to increase the purchase price for the lot to the amount accepted by lot 18, being the amount identified in the non-publication order made 2 July 2024.

(2) The applicant to seek from the owners of each lot in relation to which a support notice has been given written agreement to the variation to the strata renewal plan within 28 days of these orders.

(3) The applicant to file and serve on the respondents evidence of the written agreement to the variation of the strata renewal plan as set out in Order 1.

(4) The matter be listed for final orders to be made 7 working days after the period in Order 2 has elapsed. The parties to file and serve written submissions and any further evidence in relation to final orders.

(5) The applicant has general liberty to apply on three business days’ notice.

  1. On 17 March 2025 the applicant filed an affidavit of Ms Maysaa Parrino, solicitor for the applicant (Parrino affidavit dated 17 March 2025) and Exhibit MP-1 thereto which contained written agreements from the owners of each lot in relation to which a support notice had been given to a variation to Annexure B to the strata renewal plan to increase the purchase price for lot 19 to $1,400,000, in accordance with the first judgment, detailed at [16(1)] below.

  2. On Friday, 21 March 2025, the matter returned to me, following the delivery of the first judgment on 25 February 2025.

  3. At the listing on Friday, 21 March 2025, I raised with the parties the following questions in relation to the Court giving effect to the strata renewal plan:

1. Is it an issue that the more recent support notices received on or around 2 July 2024 were not included in the Class 3 application filed on or around 3 October 2023 pursuant to s 179(1)(b) of the Strata Schemes Development Act 2015 (NSW) (SSD Act)?

2. Could the parties please identify the document/s “detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the plan” pursuant to s 179(1)(f)(iv) of the SSD Act? … [The] affidavit of Mr Price dated 28 September 2023 (Court Book vol 7, tab 7, p 2783) and the letter from MaxCap Mortgage Security Pty Ltd dated 18 September 2023 (Court Book vol 7, tab 7, p 2934) appear to contain two different figures for the debt facility funding for the redevelopment.

3. Could the parties please address the Court on any relevant authority concerning the meaning of “good faith" pursuant to s 182(1)(a) of the SSD Act which requires the Court to be satisfied of “the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith”, including a note concerning Pain J’s decision regarding “good faith’ in Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111?

4. Where is the evidence concerning when the minutes of the strata renewal committee meetings held on 20 May 2022, 22 August 2022 and 2 March 2023 were posted to the notice board of the owners corporation, pursuant to s 169(2)(b) of the SSD Act? The images of the minutes on the notice board in the affidavit of Mr Turton and the exhibit to that affidavit (referred to on page 18 of the aide memoire) do not appear to be dated.

  1. The matter was adjourned to Wednesday, 26 March 2025 for hearing in relation to the remaining issues in the proceedings.

  2. In response to the issue raised by the Court concerning the more recent support notices not having been included in the original Class 3 application, on 25 March 2025 the applicant filed a notice of motion seeking an order pursuant to s 182(1) of the SSD Act giving effect to the strata renewal plan for the redevelopment of Strata Plan 934, and to rely on an amended Class 3 application dated 25 March 2025, relying on the following additional documents:

  1. an affidavit of Ms Maysaa Parrino, solicitor for the applicant, dated 24 March 2025 and read by Ms Parrino at the hearing on Wednesday 26 March 2025 (Parrino affidavit dated 24 March 2025) and Exhibit MP-2 thereto which contained the support notices for the strata renewal plan, including the support notices received on or around 2 to 3 July 2024, detailed at [22(1)1] below;

  2. an affidavit of Timothy John Price, a director of the first respondent, dated 25 March 2025 and read by Ms Parrino at the hearing on Wednesday 26 March 2025 (second Price affidavit dated 25 March 2025), addressing the source of finance for the carrying out of the proposed redevelopment under the strata renewal plan and Annexures A-J thereto, detailed at [22(2)]-[22(4)] below;

  3. an affidavit of Gregory John Turton, branch manager at Bright & Duggan, the strata managers for Strata Plan 934, dated 24 March 2025 and read by Ms Parrino at the hearing on Wednesday 26 March 2025 (second Turton affidavit dated 24 March 2025), addressing the posting of the minutes of the strata renewal committee meetings to the notice board of the owners corporation and Annexure A thereto, detailed at [22(5)] below.

  1. In this second judgment, I determine the amended Class 3 application seeking to give effect to the strata renewal plan following the Court’s determination of the preliminary issues in the first judgment and the hearing on Wednesday, 26 March 2025.

Background

  1. In the first judgment at [1]-[15] and [32]-[52], I set out the relevant background and procedural history up to 25 February 2025.

Relevant legislative provisions

  1. In the first judgment at [54]-[55], I summarised the process for the redevelopment of a strata scheme as follows:

54 The process for the redevelopment of a strata scheme is as follows:

(1) Step 1: A strata renewal proposal is prepared and submitted to the committee of an owners’ corporation: s 156 of the SSD Act and cl 30 of the Strata Schemes Development Regulation 2016 (NSW) (SSD Regulation).

(2) Step 2: Within 30 days, the committee must consider the strata renewal proposal: s 157 of the SSD Act.

(3) Step 3: If the committee is supportive of the strata renewal proposal, the committee must convene a general meeting of the owners within 30 days: s 158 of the SSD Act.

(4) Step 4: If the general meeting of the owners is supportive of the strata renewal proposal, a strata renewal committee must be formed: ss 160-169 of the SSD Act and cl 31 of the SSD Regulation.

(5) Step 5: The strata renewal committee oversees the preparation of a strata renewal plan. The requirements for the content of the plan are prescriptive and involve the preparation of valuations on two bases – the individual lots within the strata scheme and the whole building and its site: ss 170 and 171 of the SSD Act and cl 33 of the SSD Regulation.

(6) Step 6: At least 75% of non-utility lot owners must support the plan (s 154, definition of “required level of support”).

(7) Step 7: If support notices are received from at least 75% of the owners of non-utility lots, the owners’ corporation must convene a general meeting to decide whether to apply to the Land and Environment Court to have the strata renewal plan made: SSD Act s 178(1). The SSD Act prescribes who must be served with a copy of the application to the court, including all owners: SSD Act, ss 178(4), 179(2).

(8) Step 8: Any dissenting owners may object to the court to the making of the strata renewal plan: SSD Act, s 180.

55 Each of these steps includes either sub-steps or prescriptive measures (or both) that must be completed before the renewal process moves to the next stage.

  1. At [56] of the first judgment, I set out the requirements of the SSD Act in relation to the court’s consideration of making an order giving effect to a strata renewal plan for a strata scheme, in particular in relation to:

  1. the application to the Court and whether the application complies with s 179 of the SSD Act;

  2. whether the court can be satisfied of the matters identified in s 182; and

  3. the terms of the final orders under s 183.

  1. In particular, s 179 provides as follows in relation to an application for an order to give effect to a strata renewal plan:

179 Application for order

(1) An application for an order to give effect to the strata renewal plan must be accompanied by the following—

(a) a copy of the plan,

(b) a copy of each support notice that is in effect under this Part for the plan,

(c) the names of each dissenting owner and each registered mortgagee and covenant chargee of a dissenting owner’s lot,

(d) a declaration given by the owners corporation identifying the steps taken in preparing the plan and obtaining the required level of support in accordance with this Part,

(e) if the plan is for a collective sale of a strata scheme—

(i) a declaration given by the purchaser, if known, disclosing the nature of any relationship, whether personal or commercial, the purchaser may have with the owner of any lot in the scheme, and

(ii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot,

(f) if the plan is for a redevelopment of a strata scheme—

(i) a declaration given by the developer disclosing the nature of any relationship, whether personal or commercial, the developer may have with an owner of any lot in the scheme, and

(ii) a document specifying the amount to be paid to each dissenting owner for the owner’s lot, and

(iii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each dissenting owner’s lot, and

(iv) a document detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the plan,

(g) any other information or document about the proposed collective sale or redevelopment prescribed by the regulations.

(2) Notice of the application must be served, in accordance with rules of court, on—

(a) each owner of a lot in the strata scheme, and

(b) each registered mortgagee or covenant chargee of a dissenting owner’s lot, and

(c) if the strata renewal plan is for a collective sale of a strata scheme—the proposed purchaser (if known), and

(d) if the strata renewal plan is for a redevelopment of a strata scheme—the local council and the proposed developer (if known), and

(e) any other person directed by the court.

  1. Section 182 specifies the matters of which the Court is to be satisfied in order to make an order giving effect to the strata renewal plan:

182 Decision of court

(1) The court must make an order giving effect to the strata renewal plan if satisfied of the following matters—

(a) the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith,

(b) the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with this Act,

(c) all notices required to be served under sections 179 and 181 have been served,

…

(e) if the plan is for a redevelopment—the amount to be paid to a dissenting owner is not less than whichever of the following is greater—

(i) the compensation value of the owner’s lot,

(ii) an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan,

(f) if the plan is for a redevelopment—the terms of the settlement under the plan, as those terms apply to any dissenting owner, are just and equitable in all the circumstances,…

  1. I then set out the relevant legislative provisions from [57]-[96]. In addition to the legislative provisions there set out, s 154 of the SSD Act relevantly provides as follows in relation to the returning officer for a strata renewal plan that:

returning officer for a strata renewal plan means a person who is appointed as the returning officer for the strata renewal plan in accordance with the regulations.

  1. Also, s 177 provides in relation to the lapsing of a strata renewal plan as follows:

177   Lapsing of plan

(1)  A strata renewal plan lapses if—

(a) the owners corporation decides under this Division not to give the plan to the owners for their consideration, or

(b) within 3 months after the day the owners corporation decided to give the plan to the owners for their consideration, the required level of support for the plan has not been obtained, or

(c) the owners corporation decides not to apply to the court under Division 6 for an order to give effect to the plan, or

(d) if an application is made under Division 6 to the court for an order to give effect to the plan—the court decides not to make the order.

  1. Clause 29 of the Strata Schemes Development Regulation 2016 (NSW) (SSD Regulation) relevantly provides in relation to the definition of returning officer for a strata renewal plan in s 154(1) of the SSD Act:

(1)  For the purposes of the definition of returning officer in section 154 of the Act, the returning officer for a strata renewal plan is to be appointed by a resolution of the owners corporation and is to be a person who is independent of the owners corporation and who is not any of the following—

(a)  a lot owner in the strata scheme or a relative or associate of a lot owner,

(b)  a member of the strata committee,

(c)  a strata managing agent for the strata scheme or any employee of the strata managing agent,

(d)  a person who has a pecuniary interest in the outcome of the collective sale or redevelopment proposed by the strata renewal plan or a relative or associate of such a person (but not if the pecuniary interest is only the reasonable fee for performing the functions of the returning officer and the payment of that fee has been approved by the strata committee).

…

Evidence

  1. In the first judgment at [97]-[112], I set out the evidence much of which is relevant to this second judgment determining the amended Class 3 application.

  2. In addition, Exhibit EP-1 to the affidavit of Evan Papadopoulos dated 28 September 2023 contains a copy of the minutes of the extraordinary general meeting of the owners corporation held on 29 March 2023 which record a resolution to appoint “Rommel Alfonso of Smith Hancock Corporation Services Pty Ltd” as returning officer for the purposes of the strata renewal plan in accordance with s 154 of the SSD Act and cl 29 of the SSD Regulation.

  3. On 17 March 2025, the applicant filed an affidavit of Maysaa Parrino, solicitor for the applicant, and Exhibit MP-1 thereto. In the Parrino affidavit dated 17 March 2025, Ms Parrino summarised the written agreements from the owners of each lot in relation to which a support notice had been given to a variation to Annexure B to the strata renewal plan. The written agreement to the variation to Annexure B was in relation to lot 19 to increase the purchase price for the lot to $1,400,000 in accordance with the first judgment. Exhibited to Ms Parrino’s affidavit were the written agreements from the following owners of lots in relation to which, as at 17 March 2025, a support notice had been given:

  1. the first respondent, owner of lots 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 48, 49, 50, 52, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 80, 81, 83, 85, 92, 93, 95, 96, 97, 100, 102, 103, 106, 107);

  2. T&P Chimes Investment Pty Ltd (ACN 647 908 398), a related entity of the first respondent, owner of lot 2;

  3. Cubile Pty Ltd ACN 110 062 630, owner of lots 77, 78, 82 and 91 (the second respondent);

  1. John Neil Murray Rogers, owner of lot 47, 79 and 105 (the fourth respondent);

  2. Lydia Katrina Dimarco and Alfio Gerard Dimarco, owners of lot 53 (the sixth and seventh respondents);

  3. Lawrence Michael Lutteral, owner of lot 84 (the eighth respondent);

  4. Robert Villamaria and Maria Christina Cajucom Villamaria, owners of lot 18 (the ninth and tenth respondent);

  5. Philip Sean Jirman, owner of lots 16 and 99 (the eleventh respondent);

  6. Anthony David Godfrey Corp and Judith Margaret Corp, owners of lot 30 (the twelfth and thirteenth respondent);

  7. FBIR Holdings Pty Ltd (ACN 647 909 073), owner of lot 51 (the fourteenth respondent);

  8. Maryanne Dajkovich, owner of lot 90 (the fifteenth respondent);

  9. Michael James Reed, owner of lot 101 (the sixteenth respondent);

  10. EB 9&10 Pty Ltd (ACN 122 902 390), owner of lot 89 (the seventeenth respondent);

  11. Barbara Lynn Schmidt and Peter William Cudlipp, owners of lot 104 (the eighteenth and nineteenth respondents).

  12. Kathleen Anne Hackett, owner of lot 44 (the twentieth respondent);

  13. RC Minter Superannuation Pty Ltd (ACN 064 870 006), owner of lots 86 and 88 (the twenty-first respondent);

  14. Gretel Lees Packer (owner of lots 87 and 94); and

  15. Gabriel George Rolfe Mccallum and Fabian Frederick Rolfe Mccallum, owners of lot 98.

  1. Attached to the amended Class 3 application were many of the documents attached to the original Class 3 application, many of which are summarised at [103] of the first judgment, and in addition, the following documents:

  1. the Parrino affidavit dated 24 March 2025, in which Ms Parrino briefly outlines the background to the proceedings, including some of the matters found at [1] to [52] of the first judgment. Ms Parrino deposed that the applicant seeks to rely upon an amended Class 3 application, and exhibits to the affidavit the support notices “within the meaning of s 174(1)” of the SSD Act, received after the commencement of the proceedings on 3 October 2023, between 4 June 2024 to 3 July 2024 from the owners of the following lots: 16 and 99; 18; 27; 28, 29 and 49; 30; 44; 45; 47, 79 and 105; 51; 53; 60 and 63; 77; 78; 82 and 91; 83; 85 and 96; 84; 86; 87 and 94; 88; 89; 90; 98; 101; 104;

  2. the second Price affidavit dated 25 March 2025 in which Mr Price:

  1. addresses the apparent discrepancy between the figures for the debt facility funding for the redevelopment contained in his affidavit dated 28 September 2023 (the first Price affidavit dated 28 September 2023), and the letter from MaxCap Mortgage Security Pty Ltd annexed thereto which I raised at the listing on 21 March 2025. Mr Price deposed that:

[the] reason for the apparent discrepancy between the $75 million referred to at paragraph 18(c) of the First Price Affidavit and the $61.2 million referred to in the MaxCap letter is that the MaxCap facilities reflected the funding facility TPCD had secured from MaxCap relating to contracted and settled lots at the time we transacted the facility with MaxCap/whereas the $75 million referred to at paragraph 18(c) of the First Price Affidavit reflected the anticipated funding required for all lots, being our assumption of a total value of $105m, with an ability to fund $75m from a senior funding facility and equity contributions of $30m. This assumption was based on market conditions at the time of the First Price Affidavit;

and

  1. deposes to the source of finance for the proposed redevelopment under the strata renewal plan as at 25 March 2025, pursuant to s 179(1)(f)(iv) of the SSD Act, noting that the financing arrangements for the acquisition of lots and the redevelopment had changed since the first Price affidavit dated 28 September 2023:

16.   As to the current source of finance for the carrying out of the proposed redevelopment under the Strata Renewal Plan:

(a)   As at the date of this affidavit, Metrics will fund the settlement of the remaining lots. TPCD and TPCI have together settled 82 lots of the 107 lots in the strata scheme in a total sum of approximately $76,600,000. These acquisitions were funded by equity from the Joint Venture Partners of TPCD, being approximately $18,300,000 and Metrics Credit Partners Pty Ltd (Metrics), a leading non-bank corporate lender, approximately $58,300,000 (of a total facility limit of $58,700,000, with the remaining undrawn amount of $400,000 to be applied towards the capitalisation of interest during the term of the facility).

(b) TPCD and TPCI intend to acquire the remaining 25 lots not currently held (24 lots under contract and Lot 19 which is the subject of the proposed orders in the proceedings). The acquisition of these remaining lots will be funded by Metrics.

(c)   The total additional sum required to settle these additional lots (assuming an order is made in relation to Lot 19 at the sum paid to Lot 18) is approximately $24.1M. The total cost to acquire all lots (assuming Lot 19 is acquired at the sum paid for Lot 18) is approximately $100.7M.

(d)   The acquisition of the remaining lots will be funded by the additional $17.2M referred to in the Metrics correspondence at Annexure “B” to this affidavit and $6.9M in equity (cash) funding from TPCD and its joint venture partner NPACT Point Investments Pty Ltd. A copy of an email from Michael Goldman to Tim Price dated 24 March 2025 at 10.16am, a balance sheet from TPCD and a letter from NPACT Point Investments Pty Ltd regarding the funding of the shortfall is annexed to this affidavit and marked as Annexure “C".

(e)   Once all lots have been acquired, the redevelopment of the Property in accordance with the Strata Renewal Plan will be funded by Metrics. A copy of an email from Metrics dated 22 March 2025 at 1.10pm is annexed to this affidavit and marked as Annexure “D".

17. Attached to this affidavit and marked Annexure "E" is a copy of a news article published by The Australian dated 23 March 2023 reporting that Mr James Packer has taken a 10 per cent stake in the redevelopment of the Property;

  1. Annexure F to the second Price affidavit dated 25 March 2025 which is a news article concerning the involvement of James Packer and Gretel Packer in the redevelopment of the property;

  2. Annexures G to J to the second Price affidavit dated 25 March 2025, containing company extracts from the Australian Securities and Investments Commission, with an order date of 24 March 2025 concerning NPACT Point Investments Pty Ltd and its related entities, including Victoria Fields Pty Ltd, showing its sole shareholder as James Douglas Packer;

  3. the second Turton affidavit dated 24 March 2025 in which Mr Turton addresses when the minutes of the strata renewal committee meetings held on 20 May 2022, 22 August 2022 and 2 March 2023 were posted to the notice board of the owners corporation pursuant to s 169(2)(b) of the SSD Act. Mr Turton deposed that:

  1. Peter Politis, the chairperson of the strata committee as of 28 February 2022, would typically send Mr Turton a photograph of the noticeboard by SMS of notices or minutes displayed on the noticeboard of the owners corporation of Strata Plan 934;

  2. on 30 May 2022, subsequent to circulating the minutes of the 24 May 2022 strata renewal committee meeting:

I received the photograph of the minutes of the 24 May 2022 meeting displayed on the noticeboard from Mr Politis by SMS on or about 30 or 31 May 2022.

Unfortunately, I no longer have a copy of the SMS that I received from Mr Politis in 2022. My phone has not retained any text messages from 2022. I just know that I would have received it by 30/31 May 2022, because we were all aware at that time, how important it was to display the minutes and take photographs of the minutes immediately. I never needed to follow up the Chairperson for evidence of the minutes being displayed, as I recall always receiving such evidence by text within a day or two of providing the minutes.

I cannot confirm the first date the minutes were displayed on the noticeboard, or whether they had been displayed earlier. I can only infer that they were displayed from at least 30 May 2022.

  1. on 14 September 2022, subsequent to the 22 August 2022 strata renewal committee meeting:

On 14 September 2022, I received a further email from Mr Moddel attaching a photograph of the minutes displayed on the noticeboard.

…

While Mr Moddel's email indicates that the minutes had been displayed, I do not now the precise date on which that occurred. I have enquired with Mr Moddel today regarding the date the notice was posted to the notice board. Mr Moddel advised me that he recalled that Viviane forgot to send through photographic evidence to support the publication on the noticeboard although it had been done around 2 September 2022. He recalls that Viviane sent the email dated 14 September 2022, at page 205 of Exhibit GT-1 much later than when the photographs were taken.

I can only infer the photographs were taken on or about 2/3 September 2022, which would have been consistent with the practice of this committee and consistent with the information provided by Mr Moddel today.

  1. on 6 March 2023, subsequent to the 2 March 2023 strata renewal committee meeting:

On 6 March 2023, I sent the minutes of this meeting to the members of the strata committee by email.

I received from Mr Politis a photograph by SMS showing the minutes displayed on the noticeboard.

…

On 15 March 2023, I sent an email attaching a copy of photograph of the minutes on of this meeting displayed on the notice board to Garry Moddel, Mr Alex Ostermayer of Project Lawyers, and copied to Ms Maysaa Parrino. The subject line of the email was 'RE: SP 934 SCRM Minutes 2023-03-02'. A copy of this email and the attached photograph is annexed to this affidavit and marked "A".

I cannot be certain whether 15 March 2023 was the date on which the minutes were first displayed on the noticeboard, or whether they were displayed earlier. I can only infer from the email that they had been displayed by that date.

Giving effect to the strata renewal plan: s 179 of the SSD Act

  1. Section 179(1) of the SSD Act provides for the information and documents which must accompany an application for an order to give effect to a strata renewal plan.

Sections 179(1)(a) and (b): a copy of the strata renewal plan and each support notice in effect for the plan

  1. On 3 October 2023, the applicant filed the original Class 3 application which was accompanied by a copy of a proposed strata renewal plan in accordance with s 179(1)(a) of the SSD Act. On 25 March 2025, the applicant filed an amended Class 3 application which was accompanied by a copy of a proposed strata renewal plan pursuant to s 179(1)(a) of the SSD Act, accompanied by a copy of each support notice of the remaining owners received between 4 June 2024 to 3 July 2024.

  2. In accordance with s 179(1)(b) of the SSD Act, the original Class 3 application was accompanied by a copy of each support notice that was in effect under Part 10 of the SSD Act for the plan (support notice) received from the owners of lots in the strata scheme pursuant to s 174(1) of the SSD Act by the date of the application, as set out at [77]-[79] below.

  3. Subsequently, the amended Class 3 application filed on 25 March 2025 was accompanied by a copy of each support notice received form the owners of lots in the strata scheme, including a copy of each support notice of the remaining owners received between 4 June 2024 to 3 July 2024, as set out above at [22(1)], except that for lot 19.

  4. I am satisfied that there has been compliance with the requirements of s 179(a) and 179(b) of the SSD Act.

Section 179(1)(c): the names of each dissenting owner and each registered mortgagee and covenant charge of a dissenting owner’s lot

  1. In accordance with s 179(1)(c), the original Class 3 application and the amended Class 3 application were accompanied by a list of names of each owner of a lot in relation to which a support notice was not in effect (dissenting owner) and each registered mortgagee and covenant chargee of a dissenting owner’s lot. Presently, only lot 19 remains a dissenting owner following the provision of support notices by all other lot owners.

  2. I am satisfied that there has been compliance with the requirements of s 179(1)(c) of the SSD Act.

Section 179(1)(d): a declaration given by the owners corporation

  1. In accordance with s 179(1)(d), the original Class 3 application and the amended Class 3 application were accompanied by a declaration given by the owners corporation identifying the steps taken in preparing the strata renewal plan and obtaining the required level of support in accordance with Part 10 of the SSD Act. The declaration dated 28 September 2023 was exhibited to the affidavit of Mr Michael Joseph Moddel, the secretary of Strata Plan 934 between 3 March 2022 and 17 April 2023, dated 27 April 2023, and the affidavit of Mr Evan Papadopoulos, an employee of the first respondent and its nominee for the purpose of the Strata Schemes Management Act 2015 (NSW) (SSM Act), and secretary of Strata Plan 934 from 26 April 2023, dated 28 September 2023.

  2. I am satisfied that there has been compliance with the requirements of s 179(1)(d) of the SSD Act.

Section 179(1)(f): a declaration given by the developer, a document disclosing the amount to be given to each dissenting owner, a report of an independent valuer, a document detailing financial information

  1. In accordance with s 179(1)(f)(i), the original Class 3 application and the amended Class 3 application were accompanied by the first Price affidavit dated 28 September 2023 (Mr Price being a director of the developer, the first respondent), disclosing the nature of any relationship, whether personal or commercial, the developer may have with an owner of any lot in the strata scheme.

  2. In accordance with s 179(1)(f)(ii), the original Class 3 application and the amended Class 3 application were accompanied by a document specifying the amount to be paid to each dissenting owner for the owner’s lot.

  3. In accordance with s 179(1)(f)(iii) and clause 28(1)(b)(ii) of the SSD Reg, the original Class 3 application and the amended Class 3 application were accompanied by a report of an independent valuer, Mr Hollinshead, dated 3 October 2023 that included details of the market value of the whole building and its site (at its highest and best use), and details of the compensation value of each dissenting owner’s lot, undertaken not more than 45 days before the day the application was made on 3 October 2023.

  4. In accordance with s 179(1)(f)(iv) of the SSD Act, the amended Class 3 application was accompanied by the affidavit of Timothy John Price affirmed 25 March 2025 in Mr Price deposed to the source of finance for the proposed redevelopment of the building under the strata renewal plan. Mr Price confirmed that the source of debt funding had changed from MaxCap to Metrics (updated title searches showing caveats in the current financier’s name were appended to Mr Price’s affidavit), and confirmed the availability of funding in the sum of $17.2 million to finalise the purchase of those lots not owned by the first respondent. Mr Price deposed that the sum of $6.9 million was available from the first respondent and its joint venture partner, NPACT Point Investments Pty Ltd (NPACT), to acquire lots in order to carry out the proposed redevelopment of the building. In addition, a letter from NPACT, the first respondent’s project partner, was provided to confirm that NPACT is responsible for a minimum of 80% of the equity capital required to complete the development and, should the first respondent not fund its share of capital for any reason, NPACT would make up any shortfall.

  5. I am satisfied that the second Price affidavit dated 25 March 2025 details enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the strata renewal plan.

Section 179(1)(g): any other information or document about the proposed redevelopment prescribed by the regulations

  1. I am satisfied, for the purpose of s 179(1)(f)(iv), in accordance with s 179(1)(g) of the SSD Act and cl 35 of the SSD Regulation, that the original Class 3 application and the amended Class 3 application were accompanied by the required information and documents about the proposed redevelopment prescribed by the regulations, including the particulars of any estates or interests in the lots and common property at the time of filing the applications.

Satisfaction of matters in s 182 of the SSD Act

  1. The matters about which the court must be relevantly satisfied in determining whether to give effect to a strata renewal plan are specified in s 182(a) to (c), (e) and (f) of the SSD Act.

Section 182(1)(a): the relationship between the owners of lots and the purchaser

  1. The original Class 3 application contains a declaration on behalf of the purchaser (attached to the affidavit of Mr Price dated 28 September 2023) which discloses the relationships between the first respondent and the owners of lots that existed at the time the Class 3 application was filed. The first respondent had entered into either options or contracts for sale with all lots (except for lot 19) that it, or one of its related entities, does not otherwise own.

  2. At the hearing on 2 July 2024, Ms McKelvey for the first respondent submitted that “the relationship between the owners and the first respondent, the mere fact that: there's a commercial relationship between them; and the contracts have been entered into; and options have been entered into … [does not] affect the ability for the plan to have been prepared in good faith”. Ms McKelvey noted that there had “been disclosures all the way through as required by the Act and in Part 10”. I am satisfied for the purpose of s 182(1)(a) that any relationship between the owners of lots and the purchaser was not such as to prevent the strata renewal plan being prepared in good faith.

  3. The written submissions of the first respondent dated 25 March 2025 assisted the court in determining the meaning of “good faith” in the context of s 182(1)(a) of the SSD Act. The only case that directly addresses the requirement of “good faith” in s 182(1)(a) is the decision of Pain J in Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111 [29]-[30] (Application by the Owners – Strata Plan No 61299). The assistance provided by her Honour’s consideration of the meaning of “good faith” in that case is limited because of the very different facts. Pain J observed the following:

29 Given the EOI campaign administered by Colliers in respect of the building, the Court is satisfied that there was no pre-existing relationship between the lot owners and the purchaser. The arms-length competitive EOI process has not affected the strata renewal plan being prepared in good faith. The EOI process has facilitated the preparation of the plan in good faith as required by s 182(1)(a) of the SSD Act.

30 I am satisfied that for the purposes of s 182(1)(a) any relationship between the owners of the lots and the purchaser has not prevented the plan being prepared in good faith.

  1. In Application by the Owners – Strata Plan No 61299, the strata renewal plan proposed a collective sale of the lots within the scheme. There was an expression of interest process of multiple rounds administered by Colliers on behalf of the owners corporation to identify the proposed purchaser of the lots. The proposed purchaser did not have any contractual relationship with lot owners at the time of the court’s orders. In the absence of any such relationship, Pain J could be satisfied that there was no question that the strata renewal plan had been prepared other than in good faith.

  2. The facts here are materially different because the first respondent, as purchaser, had a relationship with a number of lot owners during the preparation of the strata renewal plan. The first respondent and T&P Chimes Investment Pty Ltd, a related entity, owned 78 lots and had option agreements for two additional lots at the time the decision was taken by the owners on or around 3 October 2023 to bring the application for an order to give effect to the strata renewal plan under s 179 of the SSD Act.

  1. I find that the fact of a commercial relationship between the purchaser and a lot owner does not, of itself, prevent a strata renewal plan from being prepared in good faith. That is particularly so in the case of a redevelopment application under Part 10 of the SSD Act where the court is only empowered to make orders requiring the sale of a lot by a dissenting owner: s 185(2). This suggests that some other arrangement for the transfer of title to lots in relation to which a support notice has been given is in place.

  2. In a collective sale, as here, irrespective of any commercial relationship between the purchaser and a lot owner, all lots are the subject of orders of the court.

  3. In the Second Reading Speech for the Strata Schemes Development Bill 2015, [1] Niall Blair, Minister for Primary Industries, and Minister for Lands and Water, said as follows in relation to the good faith provision in s 182(1)(a) of the SSD Act:

Before approving the plan, the court must be satisfied of a number of significant matters that protect the interests of all owners and act as further safeguards. First, the court must be satisfied that the plan was prepared in good faith without undue influence of the purchaser or developer and that the whole process was carried out in accordance with the Act.

1. New South Wales, Parliamentary Debates, NSW Legislative Council, 22 October 2015, 4 (Niall Blair, Minister for Primary Industries, and Minister for Lands and Water).

  1. It is apparent that the intention of the provision is to ensure that a strata renewal plan is prepared without “undue influence”.

  2. It appears that in legislation of the New South Wales Parliament, the language “prepared in good faith” appears only in the SSD Act and the SSM Act. The phrase “in good faith” appears in three other sections of the SSD Act (ss 154, 164 and 188), each of which is also in Part 10. Section 164 was judicially considered in Application by the Owners – Strata Plan No 61299 where Pain J found at [48] that a vacancy within the strata renewal committee did not invalidate later decisions of the strata renewal committee made in good faith. The phrase “in good faith” also appears in 10 sections of the SSM Act 2015: ss 37, 38, 60, 72, 165, 213A, 213B, 225, 257A and 260. The good faith element in those provisions does not appear to have been judicially considered.

  3. What might be in breach of the obligation of good faith in the context of a strata scheme was briefly considered by Ward J (as her Honour then was) in Quest Rose Hill Pty Ltd v White [2010] NSWSC 939 at [188]-[191]. That case concerned a contractual and lease dispute between lot owners within a scheme and Quest Rose Hill Pty Ltd (Quest), a serviced apartment operator and the reliance sought to be placed by Quest on powers of attorney provided in the terms of lease relating to the management of the strata scheme. Relevantly, the Court held:

190 It is submitted for the Landlords that Mr Bailey considered that, by virtue of having the benefit of the power of attorney, he could decide amounts to be raised by way of contribution to the administrative and sinking funds; appoint or dismiss the strata managing agent; choose the auditor; decide what repairs and maintenance needed to be done; sit on the executive committee; give orders to the strata managing agent as to the fund from which expenses were to be paid; have Quest pay bills and then seek reimbursement from the Owners Corporation; manage the Owners Corporation on the basis that lot owners merely had an investment and should leave management of the Owners Corporation to him; treat the administrative fund as his and the sinking fund as the Owners Corporation’s fund; and run the Owners Corporation for the benefit of Quest rather than for the benefit of the Owners Corporation. At least the last of those matters might come close to a breach of good faith, if it were established that Mr Bailey had understood that it was not open to him to insist upon the right to take those steps. However, it seems to me that that has not been established.

191 The complaints by the Landlords as to the way in which Quest has managed the business to date do not seem to me to fall within the ambit of the claims before me. I am not satisfied that a misunderstanding of Quest’s contractual entitlements, however forcefully that be asserted amounts to a breach of good faith. (It may of course be otherwise if, knowing that there are limitations on the exercise of the powers granted under the lease Mr Bailey continues to act in the manner he is said to have done in the past.) There is no suggestion that Mr Bailey or Quest has acted for some ulterior purpose or has used the powers other than in what they understood to be for the purposes of the serviced apartments business.

  1. One instance of what might, as the first respondent submitted, “cross the line” of acting in good faith in the context of a strata renewal scheme is acting for an ulterior purpose or against the benefit of an owners corporation. Owners corporations are by nature run by a majority of lot owners. If it is the will of a majority to bring about the redevelopment of a scheme, and a majority of lot owners agree to sell their lots to facilitate that outcome, it is difficult to see how such an outcome could offend the “good faith” requirement in s 182(1)(a).

  2. In these proceedings, the first respondent was proposed purchaser under the strata renewal plan, purchaser under contract and option agreements with lot owners, and a lot owner in its own right. The strata renewal committee, constituted to prepare the strata renewal plan, was a mix of representatives of the first respondent (Messrs Price and Papadopoulos) and other lot owners (P Politis, M Moddel, G Moddel, S Helou, and V Schmitzer). The members of the strata renewal committee were elected unopposed. If there were evidence that the relationship between the owners of lots and the purchaser had the effect of artificially depressing purchase prices to reduce the proceeds likely to be payable to dissenting owners, that relationship would likely be considered to have prevented the preparation of the strata renewal plan in good faith. For example, this could be occasioned by one related body corporate selling to another at an artificially low price, such an outcome favouring the purchaser. However, there is no evidence here that the first respondent has sought to use its position as purchaser to unduly leverage its position. In this case, the purchase prices of those lots owned by the first respondent when the strata renewal plan was finalised were available by searching the transfer details. There is no evidence capable of suggesting that any purchase prices have been artificially reduced or that the terms of the strata renewal plan are unusually favourable to the first respondent.

  3. To the contrary, there is evidence that the sum to be paid to the dissenting owner exceeds the compensation values derived in the valuation reports of Mr Hollinshead, dated 23 February 2023 and 10 May 2024, and Mr Dale, dated 10 May 2024, as I found in the first judgment at [137]. The variation proposed following the Court’s substantive judgment only increases the purchase price to the dissenting owner, and the first respondent has provided its consent to that variation.

  4. For these reasons, I am satisfied that the relationship between the owners of lots and the purchaser (the first respondent) has not prevented the plan being prepared in good faith, as required by s 182(1)(a) of the SSD Act.

Section 182(1)(b): the steps taken in preparing the strata renewal plan and obtaining the required level of support

  1. The steps required to be taken to prepare a strata renewal plan and obtain the required level of support pursuant to s 182(1)(b) are set out in ss 156 to 177 of the SSD Act and cll 23 to 37 of the SSD Regulation.

Strata renewal proposal

Step 1

  1. Based on the evidence outlined at [112] of the first judgment, I am satisfied that the strata renewal proposal dated 23 February 2022 includes the information prescribed by the regulations, in accordance with s 156 of the SSD Act and cl 30 of the SSD Regulation.

Consideration of proposal

Step 2

  1. The strata committee considered the strata renewal proposal at a meeting held on 3 March 2022 for the purpose of deciding whether or not the strata committee considered the proposal to warrant further consideration by the owners corporation, as set out at [103(6)(a)-(c)] of the first judgment. I am satisfied that the requirements in s 157(1) to (3) of the SSD Act have been met, including that the strata committee was convened as soon as practicable (but no later than 30 days) after the owners corporation received the strata renewal proposal, in accordance with s 157(1).

  2. Based on the evidence summarised at [103(6)(c)] of the first judgment, I am satisfied that the minutes of the strata committee meeting held on 3 March 2022 include a complete copy of the strata renewal proposal and detailed reasons for the decision that the strata committee considered the proposal to warrant further consideration by the owners corporation, in accordance with s 157(4).

  3. Based on the evidence summarised at [103(5)(b)] and [103(6)(c)] of the first judgment, I am satisfied that a copy of the minutes of the strata committee meeting held on 3 March 2022 was given to each owner of a lot in the strata scheme and posted on the noticeboard of the building within 14 days after the meeting, as required by s 157(5) and s 169(2)(b) of the SSD Act.

General meeting of the owners

Step 3

  1. As set out at [103(5)(c)] and [103(6)(d)] of the first judgment, the strata committee convened a general meeting of the owners corporation to further consider the strata renewal proposal on 30 March 2022, which I am satisfied was as soon as practicable (but no later than 30 days) after the strata committee made the decision to convene a general meeting of the owners corporation to further consider the strata renewal proposal, in accordance with ss 158(1) and (3) of the SSD Act.

  2. I am also satisfied that the notice of general meeting to consider a strata renewal proposal, as summarised at [103(5)(a)] of the first judgment, fulfills the requirements for notices of meetings relating to a strata renewal process contained in sch 7 cl 1 of the SSD Act, as reproduced at [85] of the first judgment.

  3. I am likewise satisfied that notice of the general meeting was given to each owner on 8 March 2022, at least 14 days before the meeting of the owners corporation convened to consider the proposal on 30 March 2022 in accordance with s 158(4) of the SSD Act, as set out at [103(5)(a)] of the first judgment.

Strata renewal committee

Step 4

  1. I am satisfied that after the owners corporation passed a motion that the strata renewal proposal warranted investigation by a strata renewal committee at the general meeting held on 30 March 2022, the owners corporation by resolution at that meeting established a strata renewal committee to prepare a strata renewal plan for the strata scheme, and elected its members, pursuant to s 160(1) of the SSD Act, as set out at [103(6)(d)] of the first judgment.

  2. In relation to the establishment of the strata renewal committee, I am satisfied that the first respondent:

  1. disclosed the fact that it had a financial interest in more than 25% of the lots (other than utility lots) in the strata scheme to the owners corporation before voting on the resolution to establish a strata renewal committee at the general meeting on 30 March 2022, and before Mr Price and Mr Papadopoulos were elected as a members of the committee as corporate representatives of the first respondent’s lots, in accordance with s 160(2) of the SSD Act (based on the evidence set out at [103(5)(a)(vii)] of the first judgment); and

  2. disclosed to the owners corporation any pecuniary or other interest the first respondent had relating to the strata renewal proposal that could conflict with the proper performance of the strata renewal committee’s function, pursuant to 161(2) of the SSD Act (in force at the relevant time, see [64] of the first judgment) (based on the evidence set out at [103(5)(a)(vii)] of the first judgment).

  1. I am also satisfied that, in accordance with s 31(1) of the SSM Act, the members elected to the strata renewal committee were eligible for appointment or election to the strata committee as an individual who is a sole owner of a lot in the strata scheme, or a co-owner of a lot in the strata scheme, or a company nominee of the first respondent, a corporation that is the sole owner of lots in the strata scheme (based on the evidence set out at [103(6)(d)] and [103(5)(c)] of the first judgment).

  2. I am otherwise satisfied that the strata renewal committee was established in accordance with s 160 of the SSD Act.

  3. I am further satisfied that on 5 April 2022, the secretary of the owners corporation caused written notice to be given to the owner of each lot in the strata scheme of the decision to establish the strata renewal committee, in the form prescribed by cl 31 and sch 6 of the SSD Regulation, within fourteen days after the strata renewal committee was established pursuant to s 162 of the SSD Act, as set out at [103(6)(g)] of the first judgment. I am also satisfied that the operation of the strata renewal committee was validly extended by one year by special resolution of the owners corporation on 29 March 2023, in accordance with s 166(a) of the SSD Act (in force at the relevant time, see [67] of the first judgment), as set out at [103(6)(j)(iv)] of the first judgment.

Procedures of strata renewal committees

  1. I am satisfied that the strata renewal committee kept minutes of its meetings held on 30 March 2022, 20 May 2022, 30 May 2022, 22 August 2022 and 2 March 2023 at which a quorum was present, and a record of its decisions, in accordance with ss 168 and 169(1) of the SSD Act, as set out at [103(6)(f), (h)] of the first judgment.

  2. I am also satisfied that within 14 days after the meetings of the strata renewal committee held on 3 March 2022, 20 May 2022, 22 August 2022 and 2 March 2023, the chairperson of the strata renewal committee, Michael Joseph Moddel, gave a copy of the minutes of those meetings to the secretary of the owners corporation (himself), and to each member of the committee, and placed a copy of the minutes of those meetings on the notice board of the owners corporation, in accordance with s 169(2)(a) and (b) of the SSD Act, as set out at [103(5)(b)] of the first judgment and above at [22(5)].

  3. At the hearing on 2 July 2024, Ms McKelvey for the first respondent acknowledged that there was no evidence before the Court “of the posting of the minutes of the strata renewal committee meeting of 30 March [2022]…on the notice board” in accordance with s 169(2)(b) of the SSD Act. Ms McKelvey said that the minutes were only sent to the lot owners via email or post, and that the first respondent relied on s 182(4A) of the SSD Act which provides that the court may be satisfied of the matters referred to in subss (1)(b) and (c) despite a defect or irregularity if the court is satisfied that the defect or irregularity has not caused and is not likely to cause substantial injustice. Ms McKelvey submitted that this was a technical non-compliance.

  4. I find that any defect or irregularity caused by a failure to post the minutes of the strata renewal committee meeting of 30 March 2022 on the notice board of the owners corporation as required by s 169(2)(b) has not caused and is not likely to cause substantial injustice: s 182(4A) of the SSD Act. I am therefore be satisfied of the matters identified in s 182(b).

  5. The effect of s 167(d) of the SSD Act is that the strata renewal committee was dissolved the day the owners corporation decided to apply to the court for an order to give effect to the strata renewal plan, that is, on 18 July 2023, as set out at [103(6)(n)-(o)] of the first judgment.

Preparation of the strata renewal plan

Step 5

  1. I am further satisfied that the strata renewal plan dated 2 March 2023 contained the information required to be included in a strata renewal plan for a strata renewal scheme in accordance with s 170 of the SSD Act, as set out at [103(1)] of the first judgment. In particular, I am satisfied that the strata renewal plan included the information or documents about the redevelopment prescribed by cl 33 of the SSD regulation in accordance with s 170(e) of the SSD Act, as set out at [4]-[8] and [110] of the first judgment.

  2. I am further satisfied that on 5 April 2022, the secretary of the owners corporation gave, within fourteen days after the strata renewal committee was established, written notice to the owner of each lot in the strata scheme of the decision to establish the strata renewal committee, in the form prescribed by cl 31 and sch 6 of the SSD Regulation, in accordance with s 162 of the SSD Act, as set out at [103(6)(g)] of the first judgment. I am also satisfied that the operation of the strata renewal committee was validly extended by one year by special resolution of the owners corporation on 29 March 2023, in accordance with s 166(a) of the SSD Act (in force at the relevant time, see [67] of the first judgment), as set out at [103(6)(j)(iv)] of the first judgment.

  3. I am likewise satisfied that on 2 March 2023, the strata renewal committee convened a general meeting of the owners corporation to consider the strata renewal plan, in accordance with s 172(1) of the SSD Act, as set out at [103(6)(h)] of the first judgment.

  4. At the extraordinary general meeting of the owners corporation held on 29 March 2023, the owners corporation by special resolution decided to give the strata renewal plan to the owners for their consideration, in accordance with s 172(5) of the SSD Act and s 5 of the SSM Act, as set out at [103(6)(j)(ii)] of the first judgment.

  5. I am satisfied that on 31 March 2023, Mr Moddel, the secretary of the owners corporation at that time, gave the strata renewal plan accompanied by the prescribed documents under cl 34 of the SSD Regulation to each owner for their consideration, in accordance with s 173 of the SSD Act, as set out at [103(4)] of the first judgment.

Support notices

Step 6

  1. Pursuant to s 174(1)(a) and (b) of the SSD Act, a support notice was required to be given by an owner to the returning officer for the strata renewal plan in the approved form at least 60 days after receiving a copy of the strata renewal plan (from 31 May 2023), but before the strata renewal plan lapses (in accordance with s 177). [2]

    2. The strata renewal plan has not yet lapsed as none of the circumstances set out in s 177 of the SSD Act has occurred.

  2. I am satisfied that Erwin Rommel Alfonso was appointed as the returning officer for the strata renewal plan by a resolution of the owners corporation at the extraordinary general meeting of the owners corporation held on 29 March 2023, and was otherwise appointed in accordance with s 154 of the SSD Act and cl 29 of the SSD Regulation.

  3. I am satisfied, as found at [44] of the first judgment, that on or around 20 June 2023, owners of 62 of the 80 non-utility lots in the building (77.5%), had given support notices to the returning officer. The support notices were given to the returning officer at least 60 days after each lot owner received a copy of the strata renewal plan (on or around 29 March 2023), but before the strata renewal plan lapses, in accordance with s 174(1) of the SSD Act.

  4. I am likewise satisfied that on 21 June 2023, the returning officer for the strata renewal plan gave written notice to the secretary of the owners corporation that the required level of support for the strata renewal plan (75% of non-utility lots) had been obtained, in accordance with s 176(1) of the SSD Act, based on the evidence set out at [103(2)] of the first judgment.

  5. I am also satisfied that on 21 June 2023, the secretary of the owners corporation, Mr Papadopoulos, gave written notice to each owner of a lot in the strata scheme that the required level of support for the strata renewal plan had been obtained in accordance with s 176(2)(a) of the SSD Act, based on the evidence set out at [103(6)(k)] of the first judgment.

  1. I am satisfied that on 28 June 2023, Mr Papadopoulos gave written notice to the Registrar-General in accordance with s 176(2)(a) of the SSD Act that the required level of support for the strata renewal plan had been obtained, based on the evidence set out at [103(6)(l)] of the first judgment.

  2. I am also satisfied that on receiving the notice, the Registrar-General made appropriate recordings in the folio for the common property in the strata scheme to show that the scheme is the subject of a strata renewal plan on 12 July 2023, in accordance with s 176(3) of the SSD Act, based on the evidence set out at [103(6)(m)] of the first judgment.

  3. I am satisfied, in accordance with s 174(1) of the SSD Act, that the support notices of the second to twentieth respondents were given to the returning officer between 4 June 2024 to 3 July 2024, which is at least 60 days after each lot owner received a copy of the strata renewal plan (on or around 29 March 2023), but before the strata renewal plan lapses.

  4. I am therefore satisfied for the purposes of s 182(1)(b) of the SSD Act that the steps taken in preparing the strata renewal plan and obtaining the required level of support were carried out in accordance with the Act.

The decision to apply to the Court 

Step 7

  1. I am satisfied, in accordance with s 178(1) of the SSD Act, based on the evidence set out at [103(5)(e)] of the first judgment, that on 18 July 2023 an extraordinary general meeting of the owners corporation was convened for the purpose of deciding whether to apply to the court for an order to give effect to the strata renewal plan, and that the owners corporation, by resolution, decided to apply to the court for the order.

  2. I am likewise satisfied, in accordance with s 172(2) of the SSD Act, based on the evidence set out at [103(5)(e)] of the first judgment, that notice of the extraordinary general meeting on 18 July 2023 was given on 22 June 2023 which was at least 14 days before the meeting.

  3. I am also satisfied that the extraordinary general meeting was attended by a quorum in accordance with cl 17(2)(a) of sch 1 to the SSM Act, based on the evidence set out at [103(6)(n)] of the first judgment.

  4. I am satisfied that the owners corporation satisfied itself that the strata renewal plan complies with s 170 of the SSD Act, as required by s 178(3) of the SSD Act, based on the evidence set out at [103(6)(o)] of the first judgment.

  5. I am likewise satisfied that on 18 July 2023, in accordance with s 178(4) of the SSD Act, based on the evidence set out at [103(6)(p)] of the first judgment, the secretary of the owners corporation gave, within 14 days after the decision was made to apply for an order to give effect to the strata renewal plan, written notice of the decision to each tenant of a lot in the strata scheme whose name had been notified to the owners corporation as a tenant of the lot in accordance with the SSM Act.

Dissenting owners

Step 8

  1. As at the date of the hearing on 26 March 2025, neither lot 19, the only remaining dissenting owner, nor any person on whom notice of the Class 3 application was required to be served under s 179 (2)(b) to (e) of the SSD Act, had filed an objection to the application for an order to give effect to the strata renewal plan pursuant to s 180 of the SSD Act.

Section 182(1)(c): service of notices

  1. I am satisfied based on the evidence at [99] of the first judgment that for the purpose of s 182(1)(c) of the SSD Act, all notices required to be served under ss 179 and 181 have been served.

Section 182(1)(e): the amount to be paid to a dissenting owner

  1. If the court makes an order giving effect to a strata renewal plan for the redevelopment of a strata scheme, each dissenting owner of a lot in the strata scheme must sell the owner’s lot in accordance with the strata renewal plan and the order: s 185(1) and (2) of the SSD Act.

  2. In accordance with my decision in the first judgment at [131]-[141], I will make an order that Ms Moesses, the owner of order lot 19, sell her lot in accordance with the strata renewal plan for the purchase price of $1,400,000. I find for the purpose of s 182(1)(e) of the SSD Act that $1,400,000 is an amount not less than the total consideration that would accrue to the owner of lot 19 under the strata renewal plan if the owner of lot 19 had given a support notice for the plan, and an amount greater than the total consideration derived by both valuers, Mr Hollinshead and Mr Dale. I find that the total consideration that would accrue to the owner of lot 19 under the strata renewal plan if Ms Moesses had given a support notice for the plan would be the same amount as the total consideration that would accrue to the owner of lot 18, which lot has similar characteristics in terms of size, orientation and level as lot 19. The owners of lot 18 accepted an offer of $1,400,000. I am therefore satisfied that the amount of $1,400,000 to be paid to the dissenting owner of lot 19 is in accordance with s 182(1)(e).

Section 182(1)(f): just and equitable terms of settlement

  1. In accordance with my decision in the first judgment at [131]-[141], I am satisfied for the purpose of s 182(1)(f) of the SSD Act that the terms of settlement under the strata renewal plan, as those terms apply to the owner of lot 19, are just and equitable in all the circumstances.

Conclusions and orders

  1. The Court makes the following orders:

  1. Leave is granted to the applicant to amend the Class 3 application filed on 3 October 2023 to include:

  1. affidavit of Timothy John Price affirmed 25 March 2025;

  2. affidavit of Maysaa Parrino affirmed 24 March 2025 and Exhibit MP2; and

  3. affidavit of Gregory John Turton affirmed 25 March 2025.

  1. The non-publication order made on 2 July 2024 is varied to:

  1. permit publication of the sale price of lot 18; and

  2. provide that the non-publication order applies throughout the Commonwealth of Australia and will cease to have effect once settlement of all of the lots in Strata Plan No 934 has occurred.

  1. Pursuant to s 182(2) of the Strata Schemes Development Act 2015 (NSW) (SSD Act), Annexure B to the strata renewal plan for the redevelopment of Strata Plan No 934 dated 2 March 2023 (the strata renewal plan) is varied in relation to lot 19 to increase the purchase price for that lot to the amount of $1,400,000.

  2. Pursuant to ss 182(1) and (2) of SSD Act, the strata renewal plan as varied by the Court under order 3 is given effect.

  3. Pursuant to s 183(2) of the SSD Act, the applicant is to lodge a copy of the Court's order for registration with Land Registry Services within 7 days of these orders.

  4. Pursuant to s 185(2) of the SSD Act and in accordance with the orders that follow, the owner of Lot 19 in Strata Plan No 934, Ms Anastasia Moesses must sell her lot to the first respondent in accordance with the strata renewal plan and orders for a purchase price of $1,400,000.

  5. The owner of lot 19 in Strata Plan No 934 must, within 5 business days of being notified that the Registrar General has recorded these orders on the folio of the common property and each lot in Strata Plan 934, exchange a contract for the sale of land in accordance with Annexure A to the strata renewal plan and in the amount of $1,400,000.

  6. In accordance with ss 183(1) and 185(3) of the SSD Act, on the day the first respondent becomes the registered proprietor of all lots within SP934, Strata Plan No 934 is terminated.

  7. In accordance with ss 183(1) and 185(4) of the SSD Act, upon termination of the Strata Plan No 934, the assets of the former owners corporation vest in the former owners (which at that time will be the first respondent) as tenants in common in shares proportional to the unit entitlement of their former lots, and the balance of the administrative fund be distributed to those former owners in accordance with their respective proportional ownership of the assets, within 14 days of the termination of Strata Plan No 934.

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Endnotes

Decision last updated: 02 April 2025

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Cases Citing This Decision

1

The Owners - Strata Plan 934 v T&P Chimes Development Pty Ltd (No 3) [2025] NSWLEC 58
Cases Cited

5

Statutory Material Cited

5

Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111
Martin v Commonwealth [2002] VSC 472
The Owners Strata Plan No. 20548 v Mount Street 4 Pty Ltd atf Mount Street 4 Unit Trust and Anor [2024] NSWLEC 3