The Owners – Strata Plan No. 5403 v; Sargents Developments Pty Ltd

[2024] NSWCATCD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No. 5403 v; Sargents Developments Pty Ltd [2024] NSWCATCD 58

Hearing dates:

6 September 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC

Decision:

(1) The application is dismissed.

(2) As the participating respondents have been successful, the applicant is not to debit and, if necessary, is to credit the account of the participating respondents so that they do not pay any amount in relation to the applicant’s costs of this application.

(3) For the avoidance of doubt:

(a) the participating respondents are the lot owners listed in Appendix A, and

(b) the applicant’s costs of these proceedings are to be borne by Sargents Developments Pty Ltd, Ian Douglas Allen, and Andrew Pilcher Wines, in proportion to their existing unit entitlements which total 165, 334, and 126 respectively and are, in percentage terms, 26.4%, 53.4%, and 20.2% respectively.

(4) Any application for costs of the participating respondents is to made by filing and serving submissions (of not more than five pages) and any relevant evidence within 14 days of the date of these orders.

(5) Any submissions (of not more than five pages) and evidence in response are to be filed and served within the following 14 days.

(6) Any submissions (of not more than two pages) and evidence in reply are to be filed and served within the following 7 days.

Catchwords:

LAND LAW – Strata title – unit entitlements –

valuation evidence not accepted – reallocation refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Anderson Stuart and Others v Treleaven and Others

[2000] NSWSC 283

Ashby v Slipper [2014] FCAFC 15

Makita (Australia) Pty Ltd v Sprowles

[2001] NSWCA 305

Sahade v Owners – Strata Plan 62022

[2014] NSWCA 208

The Owners – Strata Plan No. 62713 v Liberant

[2022] NSWCATAP 80

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Applicants: The Owners – Strata Plan No. 5403
Respondents:
(1)-(3) Sargents Developments Pty Ltd,
(4) Ian Douglas Allen,
(5) M K Murphie Holdings Pty Ltd,
(6) Patience Laws,
(7) Lorenz Pau Julien Trouillet,
(8) Ian Douglas Allen,
(9) Cameron McTaggart,
(10) Andrew Pilcher Wines,
(11) Ian Douglas Allen,
(12) Nathan David Keevers,
(13) Ian Douglas Allen,
(14) Andrew Pilcher Wines,
(15) Stephen Goerner,
(16)-(17) Ian Douglas Allen,
(18) Michelle Madeline Phibbs,
(19)-(20) Ian Douglas Allen,
(21) A McCoy,
(22) Andrew Pilcher Wines,
(23) Sargents Developments Pty Ltd,
(24) Nathan David Keevers.

Representation:

Counsel:
Applicant – M Forgacs
Participating Respondents – A Cheshire SC, M McGirr

Solicitors:
Applicant – Grace Lawyers Pty Ltd
Participating Respondents – Pobi Lawyers

File Number(s):

2024/00080246

Publication restriction:

Nil

REASONS

Outline

1. These proceedings raise the question of whether to reallocate the unit entitlements (UE) for the 24 lots in a strata scheme relating to a beachfront block of apartments in Manly, the building containing eight levels, each with three lots: on the north-east, south-east and western areas of each level.

2. Instead of simply naming the owners corporation as the relevant party, in this case, the application named the owners corporation as the applicant and each of the 24 lot owners as respondents. The owners of twelve lots supported a reallocation, the owners of nine lots opposed a reallocation and the owner of the remaining three lots did not participate in these proceedings.

3. For convenience, the owners corporation will be referred to as the applicant and the words participating respondents will be used to indicate the nine lot owners who opposed the application, as listed in Appendix A.

4. After considering the evidence and submissions, the Tribunal determined that the applicant had not established a case for a reallocation of unit entitlements.

Procedural history

5. After the application was lodged on 22 February 2024, a directions hearing was conducted on 2 April 2024. With the benefit of two extensions of time, documents were provided. On 5 July 2024 the parties were advised of the date allocated for the hearing.

Hearing

6. The applicant and the participating respondents were represented by counsel. Documents admitted as evidence and those marked for identification are listed in the following table:

Exhibit A	Joint tender bundle (pages 1-670)
Exhibit B	Strata records (pages 1-184)
Exhibit C	14 March 24 email from Mr Allen (initially MFI 2)
Exhibit D	Minutes of general meeting held on 27 March 24
MFI 1	Applicant’s graphs of Transfer Value and Valuation
MFI 2	The document which became Exhibit C
MFI 3	Applicant’s summary of transfer values and valuation

7. There were four witnesses, the lay witnesses being Mr Allen and Ms Phibbs and the experts being two valuers, Mr Grist and Mr Casemore. Ms Phibbs was not cross-examined but each of the other three witnesses was cross-examined.

8. Closing submissions followed the usual sequence of applicant, then participating respondents, then applicant in reply so that each party was heard both in support of their case and in response to the case of the other party.

Jurisdiction

9. As the strata plan the subject of this application was registered on 13 May 1971, the Strata Schemes Management Act 2015 (NSW) (the SSMA) applies to these proceedings and the Tribunal has jurisdiction to hear and determine this application.

Relevant law

10. The relevant wording of s 236 of the SSMA is set out below:

(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 …

(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. …

(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.

11. In addition to being satisfied that the formal requirements of s 236 have been met, for a case based on s 236(1)(a) of the SSMA, the Tribunal is required to engage in a three-stage process as set out in Sahade v Owners – Strata Plan 62022 [2014] NSWCA 208 at [62]:

First, the Tribunal must ascertain the respective values of the lots subject to the strata scheme. 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. 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.

12. Although that decision was based on the now replaced 1996 version of the SSMA, the wording is not so different as to suggest a different approach.

Lay evidence

13. Mr Allen provided two statements. They were dated 27 May 2024 (A179, ie from page 179 in Exhibit A) and 16 August 2024 (A612). In his first statement, Mr Allen indicated that he is the secretary of the owners corporation, that he owns eight lots, a company of which he is a director owns four lots, and that he holds a proxy from the owner of three lots said to be those owned by Dr Wines.

14. The second statement of Mr Allen was in reply to that of Ms Phibbs. In that statement, he disclosed that there have been no strata committee meetings since 2020 and that he calls general meetings as and when they are required. He also referred to the potential redevelopment of the site, to existing leases to telecommunications companies (Telstra and Vodaphone), and suggested that the proposed UE change would not alter the present voting situation but reason of the proxies he currently holds. He also observed that his level of control was not sufficient to pass a special resolution and that the proposed UE change would benefit all but one of the participating respondents.

15. During cross-examination, Mr Allen accepted that he and the company of which he is the sole director and secretary currently control 499 UE and that, if the proposed changes are approved, that would increase to 529, giving him control in his own right. His response was that he already has control by reason of the proxies he holds. It was noted that, when those proxies are taken into consideration, those numbers become 625 currently and 665 if the proposed changes are approved.

16. Mr Allen accepted that he has had control of the subject strata scheme since 2019 and that he is currently a one person strata committee. Issues of the opposing lot owners seeking remediation and potential redevelopment were ventilated. He accepted that one of the outcomes the proposed UE change would be that he would receive more if there was a collective sale of the lots, and that another outcome would be that he would have control without needing to rely on the proxies provided by Dr Vines.

17. Ms Phibbs said, in her affidavit (A603), that she was a member of the strata committee until the annual general meeting (AGM) held in March 2020. Her evidence was that Mr Allen, at that meeting, used his voting power to determine that there would be four members of the strata committee: “himself, a representative of his, and two other owners (who resigned later that year and sold their lots to him)”. At the March 2024 AGM she said that Mr Allen used his voting power to appoint himself as the only member of the strata committee, which is confirmed by the 14 March 2024 email from Mr Allen that became Exhibit C.

18. As the owner of Lot 18, a west-facing lot on level 6, Ms Phibbs said, at [21], that her lot had the following aspect and amenity:

• It has aspects to the south and north, with views to the southeast and northeast.

• It has a western aspect, but the only western facing windows are highlight and sidelight windows.

• It has sweeping views of the ocean to the northeast and southeast, that is towards Queenscliff beach to the north and Shelley beach to the south.

• It has sweeping district views of Manly and surrounding suburbs.

• It has the benefit of viewing sunrises and sunsets.

• In addition, the north/south breeze flow and benefits from the warmth of the northern aspect and the cool of the southern aspect.

19. In relation to the control exercised by Mr Allen, she set out the following matters (A607 at [29]):

• Allen has insisted that all meetings are conducted by way of Zoom, rather than Teams (which I believe to be the usual platform for meetings.) I believe (but I am not certain) that Mr Allen provides the +Zoom link.

• He has voted through that all meetings are recorded, and that he records the meetings. When objecting to the recording, owners have been told that the meeting would not be able to proceed. It has only been in these circumstances that various owners have agreed to have the recordings.

• Allen has clearly indicated that he wishes to pursue an agenda to redevelop the Property, notwithstanding objections on behalf of various owners, and he has taken actions with that agenda.

• Allen has utilised thew vehicle of the Owners Corporation to instruct lawyers and valuers, consistent with his own interests but at the objection of the other lot owners, and at the cost of the Owners Corporation. Accordingly, all owners in the Strata Plan have had to contribute their respective share to such costs.

• He has also used his voting power to appoint himself as the contact person in relation to the engagement of service providers or other matters affecting the strata scheme.

• He has repeatedly voted against any pre meeting electronic voting there requiring owners to attend meetings in order to vote.

• Effectively, he has been able to propose motions, determine the dates and time of meetings, require the meeting to be recorded, pass any motion he has proposed (apart from a motion requiring a special resolution), defeat any motion proposed by other lot owners and con troll the membership of the strata committee.

20. As noted above, Ms Phibbs was not cross-examined. It is convenient to here note that, in Ashby v Slipper [2014] FCAFC 15 at [77], it was said that:

… as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

Expert evidence

21. Mr Grist was able to make an internal inspection of 15 of the 24 lots before preparing his first report (A427), his second report (A616) being provided in response to the report of Mr Casemore (A580). Lot 3 was the only “rear lot”, ie west-facing lot, he was able to inspect. He provided a valuation of the market value of each lot as at 13 May 1971, more than 50 years ago, being the date when the strata plan was registered. The comparable sales data Mr Grist used was confined to (1) sales details for when the subject lots were first sold by the developer (A443), and (2) sales details for a similar building nearby, which also had eight levels, each with three lots (A442, ie page 442), that strata plan having been registered on 6 November 1970, about six months before the subject strata plan.

22. The valuation amount for each of the subject lots is set out in both Appendix B, which enables a comparison with between the initial sales of the subject lots, referred to as the transfer values, and in Appendix C, which enables a comparison with both the existing and proposed unit entitlements. In each case, those appendices have been prepared in a manner that enables a consideration between lots in a different location on the same floor, and lots in the same location on a different floor.

23. There is a discernible progression in the valuation amounts for similarly located lots, as suggested by Mr Grist, which may be summarised as follows: (1) amounts are specified for each of the three lots on level 1, (2) for levels 2, 3 and 4 add $500 for each level, (2) for level 5 add $3,000 to the amount for level 4, (3) for levels 6, 7 and 8 add $1,000 for each level.

24. The proposed unit entitlements retain the 1,000 aggregate but reallocate them in proportion to the $701,000 total of the valuation amounts for Lots 1 to 24.

25. Cross-examination explored (1) the extent to which the views from lot above Lot 3, notably lots 18 and 24, had superior views, (2) a premium for the top level, (3) the impact of trees along the beachfront, noting that those trees may have not been as high in 1971, (4) the extent to which there was a rising property market in 1971 to 1975, (5) factors which may have affected the initial sales of the subject lots, (6) whether the valuation amount for Lot 24 was too low, (7) the absence of photos to show what the vicinity looked like in 1971, and (8) the extent to which views from the lots had been considered.

26. Re-examination revealed that additional data had not been sought for reasons of time and cost. The Tribunal notes that 1971 was a time when records were paper based, unlike the electronic facilities that are now available.

27. Mr Casemore provided a report (A580) which commented on the report of Mr Grist (A427) but did not provide an alternative valuation of the market value of the lots. His criticisms of Mr Grist’s valuation may be summarised as follows.

28. First, that the valuation range is too broad, expanding from the comparable sales for the subject lots from (1) $21,000 on 18 July 1971 to $34,000 on 28 June 1973, to (2) $21,500 to $37,000. Further, valuing Lots 19, 20 and 23 at between $2,000 and $3,500 above what they sold for in 1972. Secondly, suggesting that surrounding buildings in 2017 were of three or four levels when they are were only two or three levels, being a matter relevant to the views obtained from the lots. Thirdly, attributing a higher amount to Lot 2, an east-facing first level lot ($29,500) than to Lot 24, a west-facing lot on the top level ($29,000). Fourthly, not making an adjustment to bring sales in 1972 and a sale in 1973 back to their 13 May 1971 value. Fifthly, not adequately considering the ocean and beach views obtained from the balconies of the west-facing lots on the upper levels.

29. When cross-examined, Mr Casemore accepted that the current unit entitlements did not correspond with market values. However, he did not accept there should be no adjustment for market movement over the relevant period between 13 May 1971 and the date of the sales. It is sufficient to note that, during cross-examination, Mr Casemore maintained the views he expressed in his report.

Submissions for owners corporation

30. After referring to Sahade, it was submitted that any question of control was not relevant to the first question (ie valuation) but could be relevant to the third question (ie discretion). Further, that UE do not change over time, unlike the ownership of lots. It was noted that, in Sahade at [86], Sackville AJA agreed with what was said by Santow J (as he then was) in Anderson Stuart and Others v Treleaven and Others [2000] NSWSC 283 (Anderson), namely that valuation of the lots is a fundamental consideration, but not the only matter that can be taken into consideration.

31. It was said that two east-facing lots have excellent views while the rear lots have district views with what was said to be “angled views” to the east, described as secondary views as distinct from the primary views.

32. Reference was made to the applicant’s graphs (MFI 1) and to the existing UE which were said to be illogical. It was accepted that the sales figures do contain what was referred to as discrepancies, and it was said there was an element of randomness is the sales data. The highest sale being for Lot 17 on level 6 was said to be an anomaly.

33. The Tribunal was taken to the applicant’s summary table (MFI 3). It was submitted Mr Grist’s valuations showed a “rational hierarchy” with the biggest difference being between Lot 21 ($28,000) and Lot 23 ($37,000). There was said to be a need for some adjustment since the highest sale, $34,750 for Lot 17, was for a lot that was not on the highest level.

30. In relation to any collective sale, it was noted that Mr Allen was of the view that the current UE were unfair because the owners of less valuable lots would receive more than if UE were based on market values. Reference was made to a strata committee meeting held on 31 August 2017 in relation to a proposed levy to raise $7 million for remediation work.

31. It was contended that Sahade provided support for a submission that current ownership and current control are not relevant, and that a decision as to what UE was a permanent matter and should not be determined by current ownership. The question to be determined was said to be whether the UE were unreasonable in May 1971 and, if so, what they should be in future. Further, that control was not an issue because Mr Allen already had the ability to control the strata scheme, as to ordinary but not special resolutions.

Submissions for represented lot owners

36. In accordance with what was said in Sahade, it was submitted that the three stages were (1) ascertaining a valuation of the lots as at 13 May 1971, (2) whether the existing UE are unreasonable, and (3) whether the Tribunal should exercise its discretion in favour of making an order. It was noted that the applicant needed to succeed in relation to each of those three issues.

37. A submission was made, based on Anderson, that the Tribunal had to be satisfied of a particular value for each lot, determined by acceptable principles of valuation. Further, that it was not enough to compare lots at one level and to say that lot was more valuable than another lot on a different level as there was a need to value each lot.

38. It was suggested that, in effect, the only sales data used by Mr Grist was the actual, initial sales of the subject lots, to which he made some adjustment. By reference to Mr Grist’s evidence in re-examination, it was noted that he said he could have had reference to additional sales data, but he didn’t, said to be because that would have taken longer and cost more.

39. Mr Grist’s linear progression in the values of the lots was contested and it was said that there was no reason(s) or process of reasoning provided in support of that approach, said to be contrary to what was said in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita).

40. After noting the amenities set out in the affidavit of Ms Phibbs, it was submitted that Mr Grist’s analysis did not reflect reality, said to be illustrated by a comparison of his assessed value for higher west-facing lots and low-level east-facing lots, such as his $29,000 for Lot 24 being lower than his $29,500 for Lot 2. It was noted that Lot 2 had a road out front, with traffic noise, and trees restricting the view and that the only west-facing lot Mr Grist was able to inspect was Lot 3, which is on level 1.

41. The case for the participating respondents was that the first of the three steps set out in Sahade had not been established with the contended result that the Tribunal could not go to the second step, and that what Mr Grist had done was to suggest a way in which the second step could be achieved.

42. Submissions were also made in relation to the third step, being whether the Tribunal should exercise its discretion in favour of reallocation. After referring to aspects of the issue of the extent of Mr Allen’s control, it was noted that the proposed changes only result in a 3% change in that level of control.

Submissions in reply

43. It was said that there were only challenges to the evidence “at the margin”, that the exercise carried out by Mr Grist is the exercise that should have been carried out at the time when the strata scheme was registered in May 1971, and that the existing UE allocation was unreasonable. As to the valuation amounts, submissions were made that (1) random variations in sales figures did not invalidate Mr Grist’s analysis, (2) any suggested explanation for those variations was speculative, and (3) the amounts suggested by Mr Grist were tied to the actual sales prices. The applicant’s case was that Mr Grist smoothed out anomalies and had applied a reasonable method.

44. There were also contentions that the evidence of Ms Phibbs was subjective and that the contended discrepancy between the amounts suggested by Mr Grist for Lot 24 and Lot 2 was no more than a submission. It was contended that the applicant had satisfied the first of the three steps referred to in Sahade, and that Mr Allen’s control was irrelevant as he already had control.

Consideration

45. It is necessary to first summarise some aspects of the lots in the subject strata scheme. The internal area of the lots does not change between apartments in the same location on different floors, the areas of the lots on level one being 83.39m² for Lot 1, 83.49 m² for Lot 2, and 79.90 m² for Lot 3. Likewise, the overall area does not change between apartments in the same location on different floors: 96.3m² for Lot 1, 96.4 m² for Lot 2, and 93.9 m² for Lot 3.

46. Lot 1, on the southern side of the building, has a single, east-facing balcony. Lot 2, on the northern side of the building, has a single east-facing balcony. Lot 3 is on the western side of the building, with two balconies: one facing north and the other south.

47. Each lot has a single car parking space: (1) Lots 17, 20, 22, and 23 have secure garages on the ground floor, (2) Lots 3 and 6 have covered spaces on the ground floor, and (3) the remaining lots have spaces in the basement.

48. Following what was said in Sahade, there are three issues to be considered: (1) ascertaining the respective values, (2) whether the existing UE allocation is unreasonable, and (3) whether to reallocate the UE. The applicant bears the onus of proof in relation to each of those issues.

49. The Tribunal is not satisfied the applicant has discharged that onus of proof in relation to the first of those issues for the following reasons.

50. First, the contended valuations for four lots (19, 20, 21, and 23) are significantly above the initial sale price for those lots.

51. Secondly, despite there being a rising market for sale prices, the contended valuations for seven lots (13, 16, 17, 19, 20, 22, and 23) equal or exceed the sale price for those lots in 1972 and, in one instance, 1973. No satisfactory explanation was provided for how a lot could be said to be worth more, as at 13 May 1971, than it sold for as much a year later and, in one case, just over two years later.

52. Thirdly, the uncontested evidence of Ms Phibbs (which is accepted), combined with the lack of inspection of any west-facing lot above level 1, warrants a finding that her upper-level west-facing lot (Lot 18) has been undervalued.

53. Fourthly, the suggestion that the west-facing Lot 24 on level eight ($29,000) is worth less than the east-facing Lot 2 on level one ($29,500) is rejected since it is clear that the views from Lot 24, having regard to the evidence of Ms Phibbs (two levels below), are clearly superior to those of Lot 2.

54. Fifthly, as the mathematical progression of the valuations was not supported by either any reason(s) or reasoning, that opinion is not accepted, based on what was said in Makita.

55. Sixthly, the valuations are the result of an application of a formula with the result that there has not been a valuation of each lot has not been determined in accordance with accepted valuation principles, as required by Anderson.

56. Seventhly, the progression of the valuation amounts suggests they were provided with a view to creating a more reasonable UE allocation, but that is the second issue which can only be considered if the first issue is satisfied.

57. Eighthly, there was insufficient consideration of sales evidence in relation to other buildings.

58. Ninthly, there was insufficient consideration of the impact of the date of sales of the subject lots on the amount of those sales.

59. It is also noted that three of the lots which appear to have unreasonably high valuations (Lots 19, 20, and 23) are lots owned by either Mr Allen or his company.

60. By reason of the Tribunal’s decision on the first issue, it is not necessary to consider either the second or third issues. As a result, it is not necessary consider the question of control.

61. However, the following matters are noted:

1. The proposed UE changes would give Mr Allen 50% control without the need to rely on the support of Dr Wines.

2. The proposed changes, which would only increase the extent of Mr Allen’s control by 3%, from 49.9% to 52.9%, would have minimal impact in the event of a collective sale.

3. Since there was unchallenged evidence that Mr Allen has purchased an additional two lots since March 2020, the effect of increasing his proxy-assisted control from 62.5% to 66.5% by revising the UE would be that he would only need to acquire a further two lots to acquire 75% control.

62. Since the applicant has not met the threshold requirement of establishing the values of the lots by accepted principles of valuation, it follows that the application must be dismissed.

Costs

63. In relation to the costs of the applicant, s 104(1) of the SSMA imposes the following requirement:

An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

64. The decision of the Appeal Panel in The Owners – Strata Plan No. 62713 v Liberant [2022] NSWCATAP 80 at [115] establishes that the Tribunal has the power to make an order to give effect to that requirement by quarantining the successful lot owners from having to contribute to the costs of the owners corporation.

65. There does not appear to be any reason why such an order should not be made in this instance in favour of the participating respondents in relation to the costs of the applicant.

66. As to the costs of the participating respondents, provision should be made for any application for submissions to be made in relation to those costs.

67. Any such submissions should include an indication of whether it is accepted that the Tribunal should exercise the power to dispense with a hearing, conferred by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), and determine the question of costs on the papers.

Orders

68. For the reasons set out above, the following orders are made.

1. The application is dismissed.

2. As the participating respondents have been successful, the applicant is not to debit and, if necessary, is to credit the account of the participating respondents so that they do not pay any amount in relation to the applicant’s costs of this application.

3. For the avoidance of doubt:

1. the participating respondents are the lot owners listed in Appendix A, and

2. the applicant’s costs of these proceedings are to be borne by Sargents Developments Pty Ltd, Ian Douglas Allen, and Andrew Pilcher Wines, in proportion to their existing unit entitlements which total 165, 334, and 126 respectively and are, in percentage terms, 26.4%, 53.4%, and 20.2% respectively.

4. Any application for costs of the participating respondents is to made by filing and serving submissions (of not more than five pages) and any relevant evidence within 14 days of the date of these orders.

5. Any submissions (of not more than five pages) and evidence in response are to be filed and served within the following 14 days.

6. Any submissions (of not more than two pages) and evidence in reply are to be filed and served within the following 7 days.

**********

Appendix A

Lot	Lot owner
5	M K Murphie Holdings Pty Ltd
6	Patience Laws
7	Lorenz Pau Julien Trouillet
9	Cameron McTaggart
12	Nathan David Keevers
15	Stephen Goerner
18	Michelle Madeline Phibbs
21	A McCoy
24	Nathan David Keevers

Appendix B

Lot No	Transfer date	Transfer value	Valuation
1	29 Jun 71	28,250	26,500
2	13 Sep 71	28,750	29,500
3	18 Jul 71	21,500	21,500
4	03 Jun 71	26,950	27,000
5	04 Jun 71	30,000	30,000
6	25 Jun 71	23,000	22,000
7	01 Feb 72	27,450	27,500
8	01 Jul 71	31,000	30,500
9	01 Jul 71	22,500	22,500
10	30 Jun 71	27,950	28,000
11	29 Oct 71	31,000	31,000
12	15 Jul 71	23,000	23,000
13	20 Apr 72	29,950	31,000
14	30 Jun 72	34,250	34,000
15	29 Jul 71	26,000	26,000
16	10 Mar 72	30,950	32,000
17	30 Jun 72	34,750	35,000
18	25 Jun 71	27,000	27,000
19	05 May 72	31,000	33,000
20	29 Jun 72	34,000	36,000
21	22 Jun 71	24,500	28,000
22	28 Jun 73	34,000	34,000
23	27 Oct 72	33,500	37,000
24	19 Oct 71	28,000	29,000

Appendix C

Level	Lot No	Valuation	Existing EU	Revised UE
1	1	26,500	41	38
1	2	29,500	41	42
1	3	21,500	41	31
2	4	27,000	41	39
2	5	30,000	41	43
2	6	22,000	41	31
3	7	27,500	41	39
3	8	30,500	41	44
3	9	22,500	42	32
4	10	28,000	42	40
4	11	31,000	42	44
4	12	23,000	42	33
5	13	31,000	42	44
5	14	34,000	42	48
5	15	26,000	42	37
6	16	32,000	42	46
6	17	35,000	42	50
6	18	27,000	42	39
7	19	33,000	42	47
7	20	36,000	42	51
7	21	28,000	42	40
8	22	34,000	42	48
8	23	37,000	42	53
8	24	29,000	42	41
Totals	701,000	1,000	1,000

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: 30 April 2025