The Owners Strata Plan no 73224 v Ikon Realty Pty Ltd t/as Ikon Strata

[2025] NSWCATCD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners Strata Plan no 73224 v Ikon Realty Pty Ltd t/as Ikon Strata [2025] NSWCATCD 120

Hearing dates:

26 September 2024, 27 February, 14 May 2025

Date of orders:

21 August 2025

Decision date:

21 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

H Woods, Senior Member

Decision:

(1)   Application dismissed.

(2)   In respect of costs:

(a)   Any application for costs including submissions and any evidence in support of the application for costs are to be filed and served within 14 days of the date of these orders.

(b)   Any submissions or evidence in response are to be filed and served within a further 14 days.

(c)   Any submissions in respect of costs are to state whether the party consents to the question of costs being determined on the papers, and if not why.

(d)   If there is no application for costs, then there will be no order as to costs, which the intent that each party pay its own costs.

Catchwords:

LAND LAW — Strata title —Termination of strata managing agent— Resolution to commence proceedings

Legislation Cited:

Strata Schemes Management Act (2015) NSW

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; 110 ALR 449

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 73224 v Ikon Realty Pty Ltd t/as Ikon Strata

Representation:

Mr Lazarus, a lot owner, appeared provisionally (Applicant)

Thomas Martin Lawyers (Respondent)

File Number(s):

2024/00235875

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. These proceedings primarily concern an application for an order pursuant to s 72 of the Strata Schemes Management Act 2015 (NSW) (SSMA) terminating a strata management agreement in respect of a strata scheme development in Campsie, NSW (the Strata Scheme) between the named applicant, the Owners Strata Plan no 73224 (the Owners Corporation) and the responded, Ikon Realty Pty Ltd trading as Ikon Strata (Ikon Strata).

2. A complicating feature is that, although Mr Verghese Lazarus (Mr Lazarus), a lot owner in the Strata Scheme, was the person who filed the application and purported to conduct the proceedings on behalf of the Owners Corporation, there was a dispute as to whether the Owners Corporation had authorised the bringing of the proceedings and whether Mr Lazarus had authority to appear for the Owners Corporation.

3. That position was further complicated, when between 26 September 2024 and 27 February 2024, the Owners Corporation filed a notice of withdrawal of the proceedings, but in circumstances where Mr Lazarus effectively contested the authority of the owners who sought to withdraw the application, and his claim that he represented the owners corporation, the matter remained on foot.

4. The complication of Mr Lazarus conducting the case, but arguably not having authority of the Owners Corporation to do so, was resolved by Mr. Lazarus appearing provisionally for the Owners Corporation.

5. Mr Powys, solicitor, appeared with leave for the respondent.

The hearing / documents relied on by the parties

6. The matter was heard on 26 September 2024, 27 February 2025 and 14 May 2025.

7. Mr Lazarus relied on:

1. Bundles of documents filed with the Tribunal on 22 July 2024 and 28 October 2024 which were marked Exhibit A.

2. A document headed Strata Roll of Owners for Strata Plan No 73224 “Insurance Details” which was marked Exhibit B

3. Emails filed at the Registry on 11 July 2024 that included minutes of general meetings and a strata committee meeting;

8. Ikon Realty relied on:

1. A bundle of documents filed 9 July 2024 which was marked Exhibit 1, and included:

1. a letter / statement of Mr Sudarman, a lot owner in the Strata Scheme, dated 9 July 2004;

2. a letter from other lot owners dated 1 July 2024 stating to the effect that Mr Lazarus was not an office holder of the Owners Corporation and requesting that the application be dismissed;

3. a copy of strata managing agency agreement between the Owners Corporation and Ikon Realty dated 15 June 2024 and which was had the Owners Corporation’s seal attached to it;

4. The minutes of an Annual General meeting of the Owners Corporation held on 15 June 2024.

2. An email from Mr Lazarus to the Tribunal on 12 November 2024 and the attached affidavit of Mr Sudarman dated 19 September 2024 which was marked Exhibit 2.

3. A further bundle of documents filed 24 February 2024 containing written submissions and four affidavits, although, the only affidavit read was the affidavit of Mr Lui, the strata manager at Ikon Strata who manages the Strata Scheme.

9. On 27 February 2025:

1. Mr Lazarus gave some short supplementary evident in chief and was cross examined;

2. Mr Lazarus cross examined Mr Lui; and

3. the matter stood over to a further date for Mr Sudarman to be cross examined.

10. On 14 May 2025, Mr Suderman was cross examined by Mr Lazarus and both Mr Lazarus and Mr Powys (for Ikon Strata) made oral submissions.

The application and identification of the issues

11. The application filed by Mr Lazarus on 26 June 2024 named the Owners Corporation as the applicant and sought:

Section 72 To terminate the strata managing agent or building manage agreement. To transfer owners corporation funds to the treasurer, Sumanto Gunawan.

12. Th reasons for the orders sought were:

The managing agent has been stealing money and fabricating the books since the funds were transferred unto their control 9 Aug 23. Before the agency agreement 4 Sep 23 was signed $5,938.67 was spent by the agent.

(a) $721.55 was paid to an owner and the opening balance of the admin. fund adjusted to hide the transaction.

(b) $726 + $191 was withdrawn by the agent before the Agency agreement was signed.

(c) $5,021.67 was paid for insurance that was already shown as paid in the strata role on 1 May 2023. The insurance company and broker are different from that shown in the strata role.

(d) The monthly financial reports to the strata committee members was disabled in the online system. The SC when I have given their online logins. SC got the reports from other owners.

(e) The Income and Expenditure report was boosted by $7,500 for levies that were not levied or collected.

(f) The admin cash had a deficit of $1,842.21 in the Cash Management and Balance Sheet. The I & E had a deficit of $4.75. The I & E reports have shown a cash difference for every month since reaching a maximum of $7,439.00 in Dec 2023.

(g) No electricity bill has been paid since Aug 2023.

(h) The overdue water bill for Apr 2024 was paid by a strata committee.

(i) The Council of Fire Safety Inspection due to Apr 2024 was not done.

(j) There is no insurance currently.

13. The above claims were repeated in the bundle of documents filed on 28 October 2024.

14. The application for the termination of a building manager agreement was not pressed at the hearing.

15. In circumstances where:

1. the application sought to terminate a strata managing agency agreement between the Owners Corporation and Ikon Strata dated “4 Sep 23”, which agreement was for 12 months (the 2023 Agreement), but

2. the evidence included:

1. minutes of an annual general meeting of the Owners Corporation held on 15 June 2024 (15 June 2024 AGM) in which it was resolved by ordinary resolution that Ikon Strata be appointed as the managing agent for the Strata Scheme; and

2. a strata managing agency agreement between the Owners Corporation and Ikon Strata dated 15 June 2024 but commencing 5 September 2024 for a further 12 months, which was signed by two committee members of the Owners Corporation and had the Owners Corporation’s common seal affixed to it (2024 Agreement),

Mr Lazarus was asked to clarify the strata managing agency that he contended ought to be terminated.

16. Mr Lazarus informed the Tribunal to the effect that:

1. the 2023 Agreement was not validly entered and was invalid, but that in any event;

2. the strata managing agent agreement that ought to be set aside was the 2023 Agreement in respect of which he had issued a notice of termination to Ikon Strata purportedly on behalf of the Owners Corporation in about May 2023.

17. In that light, Mr Lazarus, in summary, contends that:

1. He was the authorised representative of the Owners Corporation and entitled to conduct the application on its behalf.

2. The 2023 Agreement was not valid.

3. That the 2023 Agreement was in any event terminated by a notice sent by email by Mr Lazarus, purporting to be on behalf of the Owners Corporation, on about 2 April 2024.

4. Otherwise, that the 2023 Agreement should be terminated pursuant to s 72 of the SSMA because of the alleged conduct of Ikon Strata in the management of the Strata Scheme and its books and records, and an order made for the return of the Owners Corporation’s property to it.

5. The 15 June 2024 AGM was not validly held, and the 2024 Agreement should effectively be ignored.

18. In closing submission, Mr Lazarus also sought to refer to the power of the Tribunal to also make orders for compensation under s 72 SSMA.

19. It was made clear to Mr Lazarus, that the matter had been run and conducted and was being determined on the basis that the application was for the termination of a strata managing agency agreement, not a claim for compensation.

20. In summary, Ikon Strata contends that:

1. Mr Lazarus is not a member of the present strata committee of the Owners Corporation, is not authorised to bring the proceedings or act for the Owners Corporation and the commencement and conduct of the proceedings, contrary to s 103 of the SSMA, have not been approved at a general meeting of the Owners Corporation.

2. Mr Lazarus does not have standing to bring the application.

3. The majority of the Owners Corporation have sought to withdraw the proceedings.

4. The claimed defaults relied on my Mr Lazarus all pre date the 2024 Agreement which was executed in June 2024 pursuant to a resolution passed at an annual general meeting of the Owners Corporation and did not commence until September 2025.

5. The claims made by Mr Lazarus in respect of Ikon Strata, which it points out are serious in nature, are not supported by reliable and cogent evidence.

6. None of the matters under s 72(3) of the SSMA, which the Tribunal is to be satisfied of, have been made out.

21. The issues for consideration therefore concern:

1. Whether the Owners Corporation had authorised the bringing of the proceeding and whether Mr Lazarus had authority to conduct the proceedings for the owners Corporation.

2. Otherwise, whether Mr Lazarus has standing.

3. Subject to (1) and (2):

1. whether any of the grounds under s 72 of the SSMA for the termination of a strata managing agency agreement have been made out, and if so whether the Tribunal should exercise its discretion to terminate the 2023 Agreement.

2. Given the fact of the 2024 Agreement:

1. whether it had been approved and entered by the Owners Corporation; and

2. notwithstanding Mr Lazarus indicated that it was the 2023 Agreement that ought to be terminated, whether the 2024 Agreement ought to be terminated.

Strata Schemes Management Act 2015 (NSW) & jurisdiction

22. Mindful that there is a real issue as to whether the applicant has authorised the proceedings and whether Mr Lazarus has authority to conduct the proceedings for the Owners Corporation, s 103 of the SSMA relevantly provides (emphasis added):

Legal services to be approved by general meeting

(1)  An owners corporation or strata committee of an owners corporation must not obtain legal services for which any payment may be required unless a resolution approving the obtaining of those services is passed at a general meeting of the owners corporation.

(2)  An owners corporation or strata committee may obtain legal services without obtaining approval under this section if—

(a)  it is of the opinion that urgent action is necessary to protect the interests of the owners corporation, and

(b)  the cost of the legal services does not exceed $10,000 or another amount prescribed by the regulations for the purposes of this subsection.

(3)  Approval under this section is not required for the following—

(a)  to obtain legal advice before commencing legal action,

(b)  to take legal action to recover unpaid contributions, interest on unpaid contributions or related expenses,

(c)  to obtain legal services prescribed by the regulations.

(4)  A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation.

(5)  In this Division—

legal services includes obtaining legal advice and taking legal action.

23. Mindful that the application is for an order terminating a strata managing agency agreement, s 72 of the SSMA relevantly provides that the Tribunal may, on application by an Owners Corporation in respect of an agreement for the appointment of a strata managing agent, make orders terminating the agreement, requiring the payment of compensation to a party to the agreement, or dismissing the application, with the grounds on which the Tribunal may make an order under s 72 being set out at s 72 (3) SSMA.

24. The section relevantly states:

(1)  The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme—

(a)  an order terminating the agreement,

…

(2)  If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.

(3)  The Tribunal may make an order under this section on any of the following grounds—

(a)  that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,

(b)  that charges payable by the owners corporation under the agreement are unfair,

(c)  that the strata managing agent has contravened section 57(2),

(d)  that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,

(e)  that the strata managing agent or building manager has failed to disclose an interest under section 71,

(f)  that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.

25. It follows from the above that:

1. Only an owners corporation has standing to bring an application under s 72 to terminate a strata managing agents agreement.

2. Before doing so, a resolution approving the taking of the legal action must be passed at a general meeting of an owners corporation.

3. Before terminating a strata managing agency agreement, the Tribunal must be satisfied that one or other of the grounds identified at s 72 (3) of the SSMA have been made out.

4. Even if the Tribunal is satisfied that any of the grounds at s 72 (3) of the SSMA have been made out, it is still a matter of discretion as to whether the agreement should be terminated.

26. Putting to one side the question of authority, whether the Owners corporation has resolved to bring the proceedings and standing, the Tribunal has jurisdiction to hear and determinate an application brought by an owners corporation for the termination of a strata managing agency agreement.

Determination

27. The Strata Scheme comprises six lots.

28. Mr Lazarus owns lot 3 in in the Strata Scheme.

29. At a general meeting of the Owners Corporation on 20 May 2023, which Mr Lazarus, the Owners Corporation resolved unanimously (by 4 votes) that:

1. Ikon Strata be authorised to take over from V.J. Ray as managing agents of the Strata Scheme; and that

2. Ikon Strata is authorised to:

1. get the Strata Schemes records from V. J. Ray Pty Ltd and

2. to initiate repairs and recovery of money from lot owners A strata managing agency agreement commenced on 4 September 2023 between the owner’s corporation and Ikon Realty.

(Exhibit ML1 to the affidavit of Max Lui (ML1) p 3)

30. A new strata management agreement between the owners Corporation and Ikon Strata, being the 2023 Agreement, commenced on 4 September 2023. (ML1 p 9)

31. The 2023 Agreement was for a term on 1 year.

32. In April 2024, Mr Lazarus, purported to issue a notice of termination to Ikon Strata on behalf of the Owners Corporation. Mr Lazarus’ bundle filed 28 October 2023 (VL) p 5.

33. Mr Lazarus contends that an extraordinary general meeting was held on 28 May 2024 (May 2024 Meeting).

34. Although not clear to me who it is that Mr Lazarus says attended, Mr Lazarus contends that it was resolved unanimously that:

1. Ikon Strata’s strata managing agency agreement (that is, the 2023 Agreement) be terminated

2. Ikon Strata provide the books and records of the Strata Scheme to the treasure; and

3. if Ikon Strata fails to hand over the property of the Strata Scheme within 7 days, the strata committee is authorised to take the matter to the Tribunal and Debt collection.

(VL p 12-13)

35. Ikon Strata contends that Mr Lazarus was not financial as at the date of the meeting.

36. Having regard to the Owners Corporations records provided by Ikon Strata (ML 1 p 14), I am satisfied that Mr Lazarus was in arrears in respect of the payment of strata fees at the time of the meeting and ordinarily would have not been able to vote.

37. In any event, and putting to one side whether the May 2024 Meeting was validly convened and whether Mr Lazarus was entitled to vote at the meeting:

1. I was not taken to a notice of termination having been issued to Ikon Strata following the meeting.

2. The fact that Mr Lazarus is seeking to in some way terminate a strata managing agency agreement with Ikon Strata, contrary to Mr Lazarus’ contention that the 2024 Agreement is invalid and of no effect, is consistent with the 2023 Agreement being validly made.

3. I am not satisfied that the minutes, in any event establish that the Owners Corporation resolved to commence these proceedings.

4. As noted below, the Owners Corporation, in any event, resolved at the 15 June 2024 AGM that was attended by the owners of lots 1, 2 and 4, that [Ikon Strata] be appointed as the strata managing agent for the Owners Corporation.

38. At the 15 June 2024 AGM, the Owner’s Corporation resolved, amongst other matters, that:

1. that [Ikon Strata] be appointed as the strata managing agent and that the owners delegate to the agent all of its functions (other than those listed in section 52 (2) of the [SSMA]) and all the functions of its chairperson, secretary, treasurer and executive committee;

2. the owners corporation execute a written agreement to give effect to the appointment

3. authority is given for the common seal of the owner’s corporation to be affixed to the agreement; and

4. that two members of the strata committee be authorised to sign the agency agreement.

(Exhibit 1 p 3 to 25)

39. The minutes of the June 2024 AGM also identify that a new strata committee was elected which did not include Mr Lazarus.

40. No application has been made to set aside the resolutions identifying the new strata committee or that Ikon Strata be appointed as the strata manager.

41. Although Mr Lazarus contended to the effect that that the 15 June AGM did not occur, that the minutes are a fraud and the strata management agreement made pursuant to the resolution to appoint Ikon Strata, no application was made to set aside the resolution and I am satisfied having regard to the minutes of the meeting that the meeting was validly held and that the Owners Corporation resolved on 15 June 2024 to appoint Ikon Strata as the strata manager for the Strata Scheme.

39. The Application was then filed on 26 June 2024 naming Mr Lazarus as the applicant seeking orders for the termination of the “4Sep23” strata management agreement.

40. On 1 July 2024, the owners of three other lots wrote to the Tribunal stating to the effect that they did not support the application to terminate Ikon Strata and asking for it to be dismissed and attaching a copy of:

1. the 2024 Agreement which had been executed but was yet to commence; and

2. the minutes of the 15 June 2024 AGM.

44. On 12 July 2024, the Tribunal made directions that included:

1. That Mr Lazarus be removed as the applicant and the Owners Strata Plan No 73224 be joined as the applicant;

2. Granting leave to Ikon Strata to file an application for miscellaneous matters to have the matter dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2023 (NSW) (CAT Act)

45. An application for miscellaneous matters seeking that the application be dismissed was never filed.

46. On 2 August 2024, the Owners Corporation convened an extraordinary general meeting, which was conducted electronically, at which the owners of lots 1, 2, 4 and 5 voted:

1. to confirm the minutes of the June 2024 AGM; and

2. for the Application to be withdrawn

(Exhibit 2)

47. On 4 November, the Tribunal made orders dismissing the Application because the Owners Corporation filed a notice that it was withdrawing the Application.

48. As noted above, that order effectively set aside in circumstances where the issue of Mr Lazarus’ authority and the validity of these proceedings was still to be considered, and thereafter, the matter continued to be heard on 27 February and 14 May 2025.

49. Having regard to my consideration of the evidence, I am satisfied and find that:

1. Mr Lazarus is not currently a member of the strata committee.

2. On 15 June 2024, the Owners Corporation resolved to appoint Ikon Strata as its strata manager for a further 12 months with the new agreement (being the 2024 Agreement) to commence in September 2024.

3. No application had been made to set side that resolution.

4. The 2024 Agreement was properly executed on behalf of the Owners Corporation, commenced in September 2024 and remains in force.

5. The Owners Corporation did not resolve to commence these proceedings and, to the extent it is the applicant, it has in fact resolved to withdraw the application.

6. Mindful that the 2024 Agreement commenced in September 2024, and there is no application to terminate the 2024 Agreement, if it might otherwise have been open to the Tribunal to terminate the 2023 Agreement, there could be no utility in doing so.

7. Mr Lazarus does not otherwise have standing to bring the Application.

50. It therefore follows that the application must be dismissed.

51. For completeness, I will however also deal with the allegations made Mr. Lazarus in the context of s 72 of the SSMA, mindful that the operative strata managing agency agreement is the 2024 Agreement.

52. The alleged conduct that Mr Lazarus relies on was set out at (a) to (j) in the reasons for the orders ought in the Application and page 1 of VL 28.10.24.

53. The applicant would have the onus of establishing the matters alleged on the balance of probabilities.

54. Mindful that in the Application and the bundles filed with the Tribunal on 22 July 2024 and 28 October, Mr Lazarus refers to some of the alleged conduct of Ikon Strata as involving the “stealing of money”, “fraud”, and a “serious criminal offence”:

1. I regard such allegations as a serious matter.

2. Given the gravity of the allegations, the applicant would bear the burden of proving the matters asserted.

3. Dixon J. in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, relevantly stated (emphasis added):

‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences’

4. In my view, the “seriousness of an allegation made” and the “gravity of the consequences flowing from a particular finding”, which include that any such finding would remain on the person against whom the allegations are made, are considerations which must affect the answer to the question “whether the issue has been proved to the reasonable satisfaction of the tribunal”, and inexact proofs, indefinite testimony, or indirect inferences’ will not be sufficient.

5. A finding of fraudulent conduct is not lightly to be made:  Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; 110 ALR 449 at [2].

55. In so far as the allegations of “fraud”, “stealing” and “criminal conduct” are concerned, the evidence relied on, being the statements and records included in the bundles filed by Mr Lazarus of 22 July and 28 October is difficult to follow and unclear, and having regard to the affidavit of Mr Lui including the attached financial records, I am not satisfied that;

1. The amount of $721.55 was improperly paid to the owner of lot 6;

2. The amounts of $726.00 and $191.00 were improperly withdrawn from the Owners Corporation’s account by Ikon Strata;

3. Ikon Strata paid an insurance premium of $5,021.67 for a second time;

4. There are any overdue electricity or water bills or that the Owners is uninsured; or

5. There are otherwise any improper irregularities in the financial statements maintained or created by Ikon Strata for Owners Corporation.

56. In any event, the complaints made by Mr Lazarus concern events in or around May 2023, December 2023, August 2023, April 2024 and possibly up to June 2024 when the Application was filed.

57. All the complaints relate to matters that are alleged to have occurred before the commencement of the 2024 Agreement on 4 September 2024.

58. Therefore, and having regard to the matters identified at s 72 (3) (a), (b) and (f) of the SSMA which concern “ the agreement” which is sought to be terminated, none of the allegations can be in respect of the 2024 Agreement, and it is not otherwise claimed that Ikon Strata has contravened s 57(2), failed to disclose commissions or training services in accordance with s 60 of the SSMA or an interest under s 71 of the SSMA.

59. Therefore, even if the proceedings were authorised by the Owners Corporation and the allegations made by Mr Lazarus could be made out, they are not capable of satisfying me that

1. Ikon Strata has refused or failed to perform the [2024 Agreement] or has performed it unsatisfactorily;

2. that charges payable by the owners corporation under the [2024 Agreement] are unfair;

3.  that Ikon Strata has contravened section 57(2) of the SSMA;

4.  that Ikon Strata has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith;

5. that Ikon Strata has failed to disclose an interest under section 71;

6. that the [2024 Agreement] is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.

60. For the above reasons, the application is dismissed.

**********

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: 27 October 2025