Timpano v The Owners - Strata Plan 11247

[2024] NSWCATCD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Timpano v The Owners – Strata Plan 11247 & Ors [2024] NSWCATCD 61

Hearing dates:

29 May 2024

Date of orders:

07 November 2024

Decision date:

07 November 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G K Burton SC, Senior Member

Decision:

(1) Application dismissed.

Catchwords:

REAL PROPERTY – STRATA MANAGEMENT – removal of strata committee officer – no basis – meeting procedures including for elections - Strata Schemes Management Act 2015 (NSW) ss 30(4), 35, 37, 238, Sch 1 para 18, Strata Schemes Management Regulation 2016 regs 14, 14A

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Strata Schemes Management Regulation 2016 (NSW)

Cases Cited:

Anderson v Owners SP 61034 [2019] NSWCATAP 61

Bate v Owners SP 60549 [2018] NSWCATCD 36

Bischoff v Rita Sahade [2015] NSWCATAP 135

Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488

Farland v Simmons [2018] NSWCATCD 28

Foong v Scutella [2021] NSWCATAP 225

Gershberg v Owners SP 5768 [2011] NSWCTTT 411

Kahn v Owners SP 2010 [2017] NSWCATAP 39

Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597

Linney v Owners SP 11669 [2021] NSCATCD 123

Lockrey v Rosewall [2022] NSWCATCD 27

Moallem v CTTT [2013] NSWSC 1700

Owners SP 14593 v Soares [2019] NSWCATAP 3

Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256

Robinson v Owners SP 61717 [2018] NSWCATCD 49

Category:

Principal judgment

Parties:

The Owners – Strata Plan 11247 (first respondent)
Tamsin Louise Pretty (second respondent)
Chantelle Louise Demanuele (third respondent)
Frank Tuntler (fourth respondent)

Representation:

Applicant in person
Mr G Adamson, licensee and principal of strata manager (first respondent)
Second respondent in person
Third respondent in person; dismissed from proceedings
Fourth respondent in person; dismissed from proceedings

File Number(s):

2023/00389266 (formerly SC 23/29182)

Publication restriction:

Nil

DECISION

Outcome of proceedings

1. I have found that the application should be dismissed.

2. Both parties were not legally represented and no leave for legal representation was sought. I do not make provision for any costs orders, which in any event would require special circumstances to be established under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), given the nature of the relief claimed: Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 at [3]-[5], [58] et seq esp [104]-[111].

Background, procedure, issues

3. The applicant owns Lot 22 in a 30-lot strata scheme in Sylvania, a southern suburb in Sydney, NSW, that was registered in 1976. The first respondent is the owners corporation (OC) of the scheme. The second respondent, Ms Pretty, is the current chair of the OC and was formerly at relevant times the secretary. The third respondent, Ms Demanuele, was the former treasurer of the OC who resigned in December 2023 having sold her lot; she was removed as a respondent at the outset of the hearing. The fourth respondent, Mr Tuntler, was the former chair of the OC but was not re-elected to the OC at an EGM in July 2023. At the outset of the hearing he sought to be removed as a respondent and was so removed just before the luncheon adjournment, having been kept at the hearing in case another party raised a reason for his continuance as a respondent or required him as a witness. Both the third and fourth respondents remained as witnesses.

4. I add at this point that one reason that such former officers ought to be removed as parties to the proceedings was because there was no articulated basis for continued relief against them. The applicant did not point to any provision of the Strata Schemes Management Act 2015 (NSW) (SSMA), nor to any authority, which empowered the Tribunal to disqualify persons removed from the strata committee (SC) from standing again for election to the strata committee, as the applicant’s claim for relief consistently sought.

5. Effectively, the only person remaining against whom relief under SSMA s 238 was sought was Ms Pretty. In these reasons I have continued to refer to the strata committee (SC) from convenience since the same allegations in substance were made against all of the then members.

6. In SC 23/25654 (interim) and SC 23/08353 (now 2023/00408593) filed 21 February 2023, the applicant had sought the freezing of further payments by the OC to a building contractor, Modern Image Building & Maintenance PL (the builder), until remediation of defective guttering and fascia affecting lots 15 and 22 (the latter being the applicant’s lot) and also performance by the OC of resolutions on earlier scope of works at the AGMs in 2020, 2021 and 2022 in respect of cracked balcony ceiling panels and peeling paint. He also complained that the SC had been irregularly elected at the 2022 and 2023 AGMs under SSMA s 30(4).

7. Preparation directions were made on 22 March 2023 with extensions of time on 24 April 2023, 29 May 2023 and a refusal of a further extension that would result in vacating the set final hearing date.

8. On 9 June 2023 orders were made that in Order 1 were expressed to be “By consent” – it was not clear if the balance of the orders were by consent. Under those orders, there was to be an EGM to elect a new SC within five weeks (order 1); the OC was to enforce its contractual rights against the roofer to rectify damage to Lots 15 and 22 especially the balcony railings (order 2); the OC was to withhold payment of further monies until the repairs were completed (order 3), with five days’ notice of those works to be given to the relevant lot owners.

9. The present proceedings 2023/00389266 (formerly SC 23/29182) were filed on 22 June 2023. The applicant sought, under SSMA s 238, the removal of the SC members. The grounds for removal were: alleged failure to maintain common property, to comply with earlier NCAT orders and to respond to communications from the applicant; alleged antagonistic behaviour towards the applicant; alleged failure to hold AGMs and to carry out resolutions; alleged misleading and false information about communications procedures; engagement in major capital works without OC approval; an attempted oppressive by-law; alleged failure to keep appropriate records, and threats of legal action without legal basis.

10. The OC and SC declined mediation.

11. On 2 August 2023 the OC did not appear at a directions hearing and orders were made to join SC members, provide the applicant’s documents to those joined and for further preparation.

12. An amended application dated 4 September 2023 was filed on 7 September 2023. It sought: to prevent current SC members or their lot representative from standing again for the SC for two [succeeding] elections (the applicant in his written submissions said “preceding” which I have taken to mean “succeeding”); to have an EGM elect a new SC; to request Ms Celda Dervis, an employee of past and current strata managers, and Mr Gary Adamson, principal and licensee of the current strata manager, to declare any past or current “gifts or other benefits” relating to a contractor to the OC; for the OC to suspend payments to the builder pending compliance with a rectification order sought in respect of alleged cracking, alleged supply of incorrect thickness of concrete as quoted and other alleged non-compliance; to cause the OC to retract a communication dated 30 May 2023 allegedly stating an intention to prosecute the applicant under federal privacy legislation, and to join Ms Dervis and Mr Adamson as respondents, with an additional order against Ms Dervis to reimburse money paid to the builder to repair a ceiling fan in lot 2 which was alleged not to be the OC’s responsibility and against Mr Adamson that he confirm that the applicant was permitted to contact him as strata manager.

13. On 13 September 2023 preparation directions for the respondents’ documents were again made in the OC’s absence and the current three respondents (the SC members) were noted as already having been provided with the amended application.

14. Preparation directions were revised on 26 October 2023 when the applicant also sought the issue of summonses for production of documents.

15. On 9 November 2023 the OC’s application for leave to be legally represented was refused since the issues were said to be factual and not complicated. It was noted that the request could be revisited and that the Tribunal could not prevent a party seeking preparatory legal assistance, albeit there was then no clear basis for seeking an order in respect of those costs.

16. An extension of time was granted on 22 December 2023.

17. On 2 January 2024 the application to join Ms Dervis and Mr Adamson in the amended application filed 7 September 2023 was refused, it appears because it was found that there was no demonstrated right to or basis for the relief sought against them.

18. On 10 January 2024 an application for a summons to produce documents directed to the second respondent Ms Pretty was refused as too broad. There was an amended summons application on 14 January 2024 which with a further joinder application was set down for the next directions hearing on 24 January 2024, corrected to 30 January 2024. A further extension of time was refused on 23 February 2024 since there was an imminent directions hearing on 27 February 2024.

19. At the directions hearing on 27 February 2024 an amended set of orders filed 21 February 2024 was sought. The substantive changes were: to remove the relief claimed against Ms Demanuele since she had sold her lot after proceedings commenced; to no longer seek an EGM to elect a new committee, and to renew the application to join the principal of the strata manager which was again refused for similar reasons to those in the earlier refusal, including no basis under SSMA ss 57 with 232. The applicant was granted leave to rely on the numerous and lengthy documents that had been filed and served by 22 February 2024. The summons sought by the applicant was replaced by a list of requested documents to be served by 5 March 2024 and produced by 12 March 2024; time was extended for the respondents’ documents and the applicant’s documents in reply to 9 April 2024.

20. Ms Demanuele’s application to be removed as a party was dismissed on 28 March 2024 but as noted was successfully renewed at this hearing.

21. On 19 April 2024 the applicant’s request for a directions hearing about a summons for production was refused.

22. At final hearing a late affidavit from the applicant of 3 May 2024, which the OC said that it had received on only 13 May 2024 but which had been the subject of a request on 23 April 2024 to which the OC had not responded, was allowed over the OC’s objection, on the basis that it contained additional evidence discovered during the search of strata records, updating photographs and recent email communication not produced on summons in March 2023.

23. The applicant was not cross-examined.

24. Ms Pretty was extensively cross-examined and Mr Tuntler and Ms Demanuele were relatively briefly cross-examined. There were oral submissions in addition to the extensive written material.

25. The applicant’s material included witness statements from three other lot owners supporting his application and pointing to what they regarded as inadequate communication and works programme given the amount that needed to be done on the common property. There was no call for their attendance for cross-examination of which I was made aware.

26. There was no application under SSMA s 237 for the appointment of a compulsory strata manager. There was no application under SSMA s 106(1) for a work order against the OC.

27. Documents were filed by both parties after the decision was reserved with a request they be considered. I have done so on the basis that the respondents did not object to the applicant’s further evidence, the respondents’ further evidence was the subject of an order when the proceedings were reserved, and the documents update the position on relevant matters.

28. The respondents’ post-reservation evidence was the minute of an SC meeting on 29 May 2024 which resolved to request the builder to return to complete the quoted works by 31 July 2024.

29. The applicant’s evidence was the notice of meeting for the AGM on 25 June 2024 at which Ms Pretty was one of the nominees for the SC. The applicant drew attention, with adverse comment, to the earlier statements of Ms Pretty’s intention not to stand for re-election. The applicant also, in other material, pointed to the minute of the SC meeting not having been provided within seven days to lot owners as another example of dereliction of duty by Ms Pretty.

Applicant’s evidence and allegations

30. In his written material the applicant pointed to the following alleged derelictions in the SC’s office-bearers’ performance of their responsibilities.

31. First were delays in remediation and maintenance: two years to repair the stairway handrail to basement carpark northern side after the applicant’s motion for repair at the 2021 AGM was passed; the balcony railing had been inadequately re-sprayed and this was because the contractor had not been supplied with the consent orders of 9 June 2023 (further referred to below); revisiting other defect remediation issues alleged in SC 23/08353 described earlier because they were undertaken only from May 2023 when first raised in mid-2020; no repair of the basement carpark concrete spalling despite the applicant’s resolution being passed at the 2021 AGM; no removal of a large pile of dead tree branches and leaves which had been requested on 25 February 2023 and had not been acknowledged.

32. The applicant also said that motions passed at AGMs had not been implemented by the SC or had been unreasonably delayed in implementation, comprising various remediation and maintenance works at the 2021 and 2022 AGMs, reviewing the capital works plan at the 2022 AGM, obtaining three insurance quotations at the 2022 AGM and providing lot owners with details of the planned concrete works at the 2022 AGM. Some motions already passed at the 30 May 2023 AGM were repeated at the EGM a short time later on 24 July 2023. Lot owners had not been consulted on the colouring of concrete paths to add aesthetic value. Moss had not been cleaned off pathways, creating a hazard which continued for a further year until the paths were replaced.

33. The applicant also complained that the then strata manager’s employee, Ms Davis, had effectively biassed the vote at the 2022 AGM to re-elect the existing SC, in breach of SSMA s 30 and the strata committee nomination provisions in Sch 1 para 5. The meeting, held by pre-electronic voting, had a note on the voting form as follows:

“Strata Committee (TO REMAIN AS IS) – It is recommended to retain [the] current committee until a face to face meeting can be held to elect a new committee. Tick approve if you agree.”

34. The applicant submitted that, despite the exigencies of the covid-19 restrictions on in-person interaction, a remote access technology meeting could have been held and that covid restrictions had been substantially reduced. The result also affected the ability to discuss management and maintenance issues.

35. The applicant complained that the 30 May 2023 AGM also restricted rights to nominate by again selecting pre-meeting e-voting, stating under the SC motion that nominations for the SC could not be taken at this time and hence an election could not be held until a meeting in person or by remote technology. The applicant’s nomination for the SC was not included on the agenda. The applicant complained to Fair Trading on 20 June 2023; on 18 August 2023 Fair Trading responded that “the information that you have provided has been assessed against the obligations of the Managing Agency and a potential breach has been identified”. The licensee of the strata manager was said to have been provided “strong education about their obligations under the law. We took this action after we reviewed all the information provided by you and the agent and assessed it for breaches of our laws”. The letter from Fair Trading continued that all the information was recorded and usually regulatory action would be escalated if there was new information in the future about the strata manager.

36. The applicant said that other nominations for election to the SC had also not been included and the minutes of an EGM on 24 July 2023 did not include vote tallies on the election in contrast to the vote tallies at the AGM on 30 May 2023. At the EGM the chair (the principal of the strata manager) had not followed proper voting procedure consistently, despite multiple owners raising concerns. Nominations for election to the SC other than the current SC members and the applicant, that had been sent to the strata manager, were not announced by the strata manager as chair until the applicant inquired, and then one of the extra nominations was still not announced. Voting for the SC was not accurately carried out or recorded. The strata manager responded to later communications that the votes had been checked three times and the decision stood, with the meeting chair’s decision being final and conclusive (refer SSMA Sch 1 para 16(2) for finality of such declaration other than a vote on a poll).

37. The applicant said that at the 2023 AGM the entry into a contract for concreting works for $73,550 with a builder on 1 March 2023 was presented as “for information only” rather than as a voting item with an identified mover as required for capital works above $30,000 and which significantly altered the exterior appearance of the building. The accepted quotation differed in its scope from two other quotations and this was alleged to advantage the builder with the accepted quotation. The builder had had a licence condition restricting HBCF work between 23 November (presumably 2022) and 8 February 2023. The contract with the builder allowed the builder to vary the terms.

38. The builder was also alleged to have a “preferred” relationship with the existing SC which led to the SC organising the exit, via an EGM in November 2022, of the previous strata manager who refused to work with that builder after Ms Dervis, the employee who managed the scheme (including details of quotations), moved to the current strata manager. The principal of the builder lived in the same house as the employee and the details of that “close personal connection” were not disclosed to the current strata manager’s principal or the lot owners. The “preferred” builder had charged over $80,000 for services of maintenance and minor works between at least 2018 and 1 September 2023. With the exception of the concreting works, the “vast majority” of the builder’s services were directly engaged by the employee without a quotation process.

39. The applicant alleged that the current strata manager and SC in their denials of wrongdoing misled lot owners: at the time the builder quoted (13 April 2022) and contrary to the strata manager’s principal’s response to the applicant’s inquiry, the employee was still employed by the previous strata manager (until May 2022 according to the employee’s LinkedIn profile); the SC’s letter denying a relationship between the employee and the builder referred to all capital works being quoted by three companies which were offered on request, but not provided when the applicant requested them. The current strata manager principal at the 24 July 2023 EGM denied the employee-builder relationship but did not elaborate.

40. The applicant alleged that the concreting works were non-compliant with the quoted scope of works in thickness of concrete, were defective in cracking due to an inadequate expansion joint and had created a hazard with an overheight step at the stairway to the basement carpark, all of which had not been sought to be remediated by the SC and final payments withheld. Additionally, the SC had not raised soil level to the height of a new path and had not ensured that some aesthetically-unattractive existing path panels were also replaced (including two on Council land at the property entry).

34. The applicant pointed to inconsistent communications in extracted communications: the strata manager said that all communications should be through the SC; the SC said that all communications should be directly to the strata manager; there was no response when the inconsistency was pointed out. His communications generally had not been responded to, or had been responded to with the foregoing inconsistency, and the secretary’s updated email had not been communicated to lot owners. His communications included pointing to defects in the builder’s concreting works; an answer some time later was inaccurate and did not answer the allegations of defective work which had not been appropriately investigated by the SC, together with departures from the quoted scope in the actual works on the applicant’s measurements. Rather, aggressive defensive responses had been received when damage to paint on a balcony balustrade and stairwell handrail had been reported.

35. The applicant pointed to the serial re-introduction and defeat of a proposed by-law supported by the SC alleged to allow the SC and strata manager to refuse to communicate with any lot owner at their discretion.

36. The applicant criticised the paucity of recorded communications between the SC and the strata manager, particularly given the amount of works undertaken since November 2022, the infrequency of SC meetings and the absence of notice of such meetings.

37. The applicant said that the consent orders of 9 June 2023 had not been fully complied with. The EGM was held a week and three days late. As said earlier, the balcony railing had been inadequately re-sprayed and this was because the contractor had not been supplied with the consent orders.

38. The SC members were alleged not to have enforced scheme by-laws and to have themselves failed to comply with the by-laws: parking of vehicles on common property while washing or servicing them, blocking access; Ms Demanuele’s partner using his garage and the common property driveway in the course of conducting his motor vehicle mechanic’s business with associated use of power tools and potentially hazardous substances; Ms Pretty smoking in prohibited areas; Mr Tuntler and his partner hanging clothes and washing over the balcony railing; installation by Mr Tuntler of new floor coverings without authorisation; major bathroom renovations (re-waterproofing, re-tiling, new fixtures) by another lot owner in 2022 without the SC insisting on authorisation.

39. The SC was charged with changing a car space which was common property used by residents and visitors to a dedicated car washing bay without any rationale since Council requirements for such bays did not extend to existing buildings, and without discussion with lot owners.

40. The applicant claimed to have been intimidated by the SC falsely accusing him of breaching federal privacy legislation by unauthorised use of email addresses and phone numbers, which he contested and said were communications with other concerned residents.

41. The applicant complained about the SC’s declining to attend mediations on two matters in 2022 and 2023 (the latter concerning the 24 July 2023 EGM), potentially causing additional representation charges by the strata manager in the Tribunal.

42. The applicant submitted that the foregoing behaviour was not in the best interests of the OC and the SC members had breached their due diligence duties.

Applicable legislative provision and authority

50. SSMA s 37 provides “It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.” A note says that s 260 provides protection from personal liability for SC members who act in good faith in executing their functions.

51. SSMA s 238 relevantly provides as follows:

“(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders:

(a) an order removing a person from a strata committee;

(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation;

(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.

(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has:

(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme; or

(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.”

An “interested person” is defined in s 226 relevantly to include a lot owner.

52. SSMA s 238 gives, by the word “may”, a discretion to the Tribunal which needs to be exercised on principled grounds.

53. It is unlikely that principled grounds would lead to exercise of the discretion to remove an elected member of the SC or officer of the OC (chair, secretary, treasurer) for isolated incidents, however important in themselves in terms of consequences, unless the incidents showed serious misconduct or dereliction of duty (including disobedience to Tribunal or Court orders) that justified overturning an elected outcome: Linney v Owners SP 11669 [2021] NSCATCD 123 at [94]; Lockrey v Rosewall [2022] NSWCATCD 27 at [15]-[16].

54. The removal of a strata scheme officer under s 238, like the appointment of a compulsory strata manager under SSMA s 237, is therefore not lightly done and similar principles apply, mostly derived from authority on s 237. For statement of the similar principles to those expressed in the preceding paragraph, in the context of s 237, see, eg, Kahn v Owners SP 2010 [2017] NSWCATAP 39 at [30]; Owners SP 14593 v Soares [2019] NSWCATAP 3 at [44], [46]; Anderson v Owners SP 61034 [2019] NSWCATAP 61 at [41]-[42].

55. The aim of SSMA s 237 and its predecessors in the 1996 Act is, where possible, to maintain a democratic system which the legislative scheme has established, rather than substitute a compulsory appointment: Kahn v OC SP 2010 [2017] NSWCATAP 39 at [30]. It is not enough that the owners simply do not get along: Bischoff v Rita Sahade [2015] NSWCATAP 135. The evidence may show a properly functioning strata scheme in all practical respects despite any personal animosities or disagreements on the decisions made: Robinson v Owners SP 61717 [2018] NSWCATCD 49 at [53]-[58]; Anderson v Owners SP 61034 [2019] NSWCATAP 61 at [41]-[42]. The same applies in the context of strata scheme officers or SC members.

56. However, if dispute becomes chronic, complex and/or litigious the trigger point may well have been reached: Moallem v CTTT [2013] NSWSC 1700 at [7]; Bate v Owners SP 60549 [2018] NSWCATCD 36 at [77]-[78]. This may also be the case where there is a clear and substantial dereliction in the duty to manage the scheme in accordance with statutory requirements and in the interests of all lot owners under SSMA s 9(2) and its statutory predecessors, without discrimination: Gershberg v Owners SP 5768 [2011] NSWCTTT 411; Owners SP 14593 v Soares [2019] NSWCATAP 3 at [44], [46].

57. Failure to engage or reasonably to act in accord with relevant expertise and advice, including the strata manager for voluntary members of a strata committee, may be a sufficient indicium: Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488 at [27]-[28].

58. There may be a need for intervention to provide a “clean slate”, to re-establish proper functioning, and to facilitate non-repetition of dysfunctional conduct or non-compliance with statutory requirements (which in the case of a compulsory strata manager may require the maximum appointment period of two years): Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597 at [74]. (For a compulsory strata manager, this may require continuation on a serial basis if the complexity of the mix of uses in the scheme, the size of the scheme or other ongoing management issues are present: Foong v Scutella [2021] NSWCATAP 225.)

59. If a compulsory strata manager is appointed, it should be someone who, in addition to giving the statutory consents, will provide the necessary impartial management at least cost: Farland v Simmons [2018] NSWCATCD 28 at [45].

60. In the present proceedings, no invalidation of an election of an SC member was sought under SSMA s 24(2), nor of a resolution of the OC at a general meeting under s 25. There was no indication in the evidence that the procedure under SSMA Sch 2 para 9(3) was available and invoked for invalidating an SC decision by notifying that it was opposed before being made by lot owners with more than one-third of unit entitlements.

61. SSMA Sch 2 para 18 provides for disclosure “as soon as possible after the relevant facts have come to the member’s knowledge”, of direct or indirect pecuniary interests in a matter being considered or about to be considered by an SC if “the interest appears to raise a conflict with the proper performance pf the member’s duties in relation to the consideration of the matter”. A general disclosure that the member is a partner of a specified person is sufficient. Disclosures must be recorded and open for inspection. After disclosure, the member must not be present while the matter is deliberated on or take part in any decision with respect to the matter. A contravention does not invalidate an SC decision. An indirect pecuniary interest includes “if a person connected with the person [disclosing] has a direct interest in the matter”.

62. Regulation 14 of the Strata Schemes Management Regulation 2016 (NSW) (SSMR) provides that, for voting at meetings of the OC and SC, a notice for a meeting of an owners corporation or a strata committee may specify one or more of the following ways of voting which include, at para (b), “if the strata committee has, by resolution, adopted pre-meeting electronic voting as a way of voting—pre-meeting electronic voting for a meeting of the strata committee” and at para (c) “if the owners corporation has, by resolution, adopted pre-meeting electronic voting as a way of voting—pre-meeting electronic voting for a meeting of the owners corporation”. There was no challenge to pre-meeting electronic voting having been adopted in accord with these provisions.

63. SSMA s 30(4) provides that the elected members of a strata committee “must be elected at each annual general meeting of the owners corporation”; see also s 35(1)(d). Provision for appointment, as opposed to election, of SC members is limited to strata committee members prior to the first AGM (s 29 especially s 29(3)) or to fill casual vacancies (s 35(2)) or as alternates for a meeting (s 34). SSMR reg 14A(a) provides that an election must not be determined by pre-meeting electronic voting.

Consideration and conclusion

64. The applicant’s evidence, in the Fair Trading letter of 18 August 2023 relied on by the applicant as earlier described concerning the non-compliance with obligations to put SC nominations forward, also said that no potential breach of the strata manager’s obligations had been identified on the other three matters of complaint by the applicant (described also above): the letter concerning a potential breach by the applicant of privacy legislation; the strata manager failing to declare conflict of interest to the OC between the strata manager and the recommended contractor; the strata manager advising that any communication from the applicant be directed through the SC. There was apparently no matter raised with Fair Trading concerning the SC members.

65. In those circumstances, it seems not possible to attribute any dereliction of duty to the SC members concerning these matters.

66. The provisions cited above concerning election of SC members meant that the resolutions at the 2022 AGM probably flowed from a mistaken understanding of the SC and/or the strata manager because there is no evidence as to whether the temporary covid dispensations were still in place at that point.

67. Turning to the concreting contract with the builder, there was no evidence to show that the differing scopes of work were the result of differing instructions given to each person quoting; as said below, the SC said that the same scope was given to each potential contractor who then prepared its quotation as it wished. The builder’s successful quotation and performance of the works was outside the short period of the builder’s licence restriction on work requiring HBCF insurance (23 November 2022 to 8 February 2023).

68. Further, the new (from November 2022) strata manager’s principal’s response of 27 June 2023 pointed to the long-standing commercial relationship of that strata manager with the builder and the engagement of the builder on the concreting contract before the employee (Ms Dervis) of the former strata manager joined the new strata manager in mid-2023 and the applicant from about the same time raised the issue with the SC and the new strata manager. Accordingly, even if the employee had a “preferred” or “close personal” relationship with the builder which would be required to be disclosed by the strata manager as an agent to the OC as its principal under at least general fiduciary law, it did not affect entry into the present contract. The email of the previous strata manager that apparently criticised the builder’s preferred status with its then-employee Ms Dervis (to the extent if any it was relevant) was not the subject of evidence and potential cross-examination and had little weight.

69. Most of the communications from the strata manager and the SC that responded to the applicant were couched in objective terms, with the occasional exasperation and despite the privately-expressed views about the applicant that the strata manager and the SC communicated in emails to each other, which the applicant put into evidence from the strata records. In the case of the response on behalf of the SC of 27 May 2023 to lot owners denying what were seen as defamatory imputations by the applicant, on the evidence in these proceedings the response was justified in its terms.

70. That letter also pointed to the amount of remedial and maintenance work undertaken with the then-current composition of the SC. Whether or not the comparison with the alleged inaction of earlier committees was valid, the description of works that had been undertaken was not challenged as a whole with appropriate evidence, including expert evidence. The delay in those works which was criticised was not supported by appropriate evidence, including expert evidence.

71. The strata manager’s response to the applicant of 23 December 2022 on lines of communication and source of instructions simply referred to its terms of engagement. There was an inconsistency with Ms Pretty, the secretary’s, email six months later in terms of communication protocol. Given the time lapse, one would reasonably expect this to be resolved by communications. Mr Tuntler, the then chair’s, response email on 1 July 2023 when the inconsistency was pointed out (in an email from the applicant on 23 June 2023) pointed to the change of strata manager and a potential resolution on communication protocols with a dedicated strata manager as point of contact to be resolved with the next AGM.

72. The proposed by-law prohibited lot owners or occupiers from engaging or assisting in or encouraging “Unreasonable Communications” which were defined as communications that were unreasonable owing to their content (defamatory, offensive or otherwise), volume, length, duration or frequency or that “are or consist of swearing, harassing, bullying, intimidating, derogatory language, shouting or yelling”. The SC could in its absolute discretion refuse to respond to such and adopt a Communication Plan to deal with such matters, but which could not affect the OC, SC or strata manager’s statutory obligations to communicate with owners.

73. There was communication over the applicant’s allegations of defects in the concreting work (including alleged non-compliance with thickness in the quotation). The applicant pointed to alleged discrepancy in the length of the period between concrete pour and fencing work, on the one hand (according to notices to lot owners, residents and agents of commencement of works), and the explanation given to the SC by the builder on the other hand, for the cracks. The photographs showed what appeared to be a hairline crack. There were photographs showing measurement of concrete thickness at various edge location which showed less than the quoted thickness. There were also photographs showing existing parts of path (part on Council land, part a panel adjacent to existing driveway) which were not replaced and were said to detract from the aesthetics of the property and the value of lots.

74. There was no independent expert assessment of the alleged non-compliance with quotation of the concrete thickness (for instance, was it only the edges, was there a permitted taper to the edges for drainage fall) or whether the alleged omissions were within the quoted scope or whether the thickness of the crack required remediation under what is colloquially known as the “crack table” (the thickness shown on the photograph makes required remediation doubtful). Photographs did not show any substantial narrowing of the new paths where they met existing path. The builder was recorded as offering to remediate the crack as a goodwill gesture. The then chair responded to the applicant, in an email of 26 May 2023, “Once again as said previous all will be addressed by trades where required. Cease the incursion, the committee will handle things you are not a trades person and nor are we”.

75. The roofer’s email of 13 July 2023 to the applicant which said it had not received the NCAT order of 9 June 2023 and the specific requirements in it (which included powder coating the railings) continued “Once the order is reviewed we will evaluate the scope of works and develop an appropriate action plan”. The applicant’s evidence did not disclose whether this was carried through. Given the detailed examination of other complaints, it is reasonable to infer that the powder coating did occur as required by the order or the non-compliance would have been mentioned.

76. The applicants’ photographs and those of the three other lot owners who supported his application showed a number of items that clearly required remediation or maintenance. Communications from the SC referred to the works programme and what had been achieved (including remediation of some items in the photographs) despite covid restrictions and shortages and other obstacles (including weather and change of strata manager); this encompassed progressing items that had been the subject of resolutions at the 2022 AGM. While some of these matters (such as cleaning paths for safety reasons given the period before the concreting was undertaken) could form the basis for a critique of performance, there was insufficient basis to show the required dereliction of duty to remove an SC member other than in the usual electoral system. In particular, there was insufficient evidence (expert and otherwise) to show, for example, that the funds and the relevant contractors were available to move in implementing maintenance and repair more quickly than was done.

77. The applicant’s photographs also showed what appeared to be cleaning and maintenance work on cars in the common driveway and in a basement garage. The photographs and advertising material were not sufficiently specific to establish that a business was being run from the strata scheme or that items stored or used infringed the by-law against storage of inflammable material which was expressed not to apply to materials intended for domestic use or for use in a motor vehicle fuel tank or engine. The strata manager had responded to the complaint to the effect (citing Fair Trading Q&A) that a by-law could not restrict running a business so long as access to common property was not interfered with. The strata manager also said that a warning would be sent that a breach notice would be issued if there was such obstruction.

64. The applicant’s photographs showed laundry from one lot over the balcony railings. There was no evidence of how often this occurred and whether it had been the subject of previous specific warnings. A general circular about not engaging in this behaviour was sent to all lot owners and managing agents and the applicant (who had said that such was not necessary as the breach was isolated to one lot) was advised “The tenants in question no longer reside on the premises”. A by-law breach notice accordingly was otiose.

65. The foregoing has been drawn from documents in the applicant’s evidence. In my view, it does not establish the basis for the relief sought by the applicant in itself, for the same reason as given below.

66. Additionally, the respondents’ evidence described the works that had been completed and the process and scope of works in the concreting quotation process, implementing significant aspects of a safety risk assessment report from mid-2017 and other required works, including the roofing works under the consent orders of 9 June 2023. The SC justified not incurring the small cost of cleaning moss off paths that were to be replaced, a matter on which I have earlier commented. The SC pointed out that it was their responsibility to exercise the discretion in relation to how by-law breaches were handled. The SC had sought a response from the current strata manager on the alleged conflict of duty and interest involving the employee when it was raised by the applicant. The cars were parked temporarily in front of the relevant lot owners’ own garage, were owned by friends or the lot owners and (as the applicant’s extracts from promotional material appeared also to show) were temporarily in parking bays for promotional photographs.

67. The position appears to be that, despite the allegations, Ms Pretty has been re-elected at the 2024 AGM and this time chairs the OC. While I do not have the voting record in minutes, it appears that the applicant and his three supporting lot owners in these proceedings are in a minority and the majority continues to have confidence in Ms Pretty and the new SC members elected with her.

68. It appears clear, in the absence of evidence that covid restrictions continued to apply, that the restriction on SC election at the 2022 and 2023 AGMs should not have occurred. The effect of SSMA s 35(1)(d) was that the SC continued in office: “An elected member of a strata committee vacates office as a member … (d) at the end of the next meeting at which a new strata committee is elected by the owners corporation”. It appears that this non-compliance (if it was non-compliance to the extent covid restrictions did not continue in place) was a perception shared by the SC and the strata manager. It appears to have been remedied at the EGM of 24 July 2023 which renders it futile to make an order for removal unless there are other, sufficient grounds for removal.

69. I do not consider it against Ms Pretty’s credit that she ultimately decided to re-contest the SC election at the 2024 AGM. She is entitled to change her mind including in the short time frame between the hearing and the notice of AGM and in the context of discussions about the AGM before and after the hearing. There was no other material and no proper basis to sustain the serious inference that she had been dissembling in her earlier evidence. There was no reason for her to do so at time of hearing, since her intention would not at that point affect the outcome.

70. Overall, despite the numerous instances of individual or systemic failure alleged by the applicant against the SC for an order under SSMA s 238, there is a dearth of objective material of serious misconduct, as opposed to energetic disagreement (in vigorous language at times in emails from all involved) concerning activities and decisions of the SC, and the SC’s decisions are not established by objective material to be unreasonable or chronic. There is also a dearth of material that the SC decision-making has resulted in paralysis or chronic malfunctioning of the strata scheme; indeed, the opposite is the better inference.

71. Given the stress in the authorities on preserving the elected structure of a strata scheme, in my view there is not the sufficiently serious misconduct and/or unreasonable or chronic dereliction of duty established so as to justify removing the sole remaining member of the SC against whom this application is now brought. At most, there may be instances of non-compliance with meeting procedures which require greater attention in the future by SC members, with no indication that such were intentional or other than on a mistake possibly shared by the strata manager.

72. The application against the OC to require it to withhold payments and seek rectification of the concreting works from the builder was not developed in the applicant’s materials, nor was a clear basis put as to the Tribunal’s power to make the orders actually sought; it is not a work order under SSMA s 106. For the reasons already discussed in relation to this issue, particularly the absence of expert evidence, I in any event reject this claim for relief, to the extent it was pressed and that there is a proper basis (if any) for the Tribunal to make the actual orders sought. I note the further evidence that the builder was returning to site to complete works.

73. I also reject the application that the OC withdraw the alleged threat concerning prosecution under federal privacy legislation. It was not made out as a basis of complaint accepted by Fair Trading and no further basis was put in these proceedings. Again, there was no clear basis in the Tribunal’s power to make the order sought.

74. For the foregoing reasons, the application will be dismissed.

75. I finally note that there was much irrelevance to this application for relief in the voluminous material filed by the applicant and (to a lesser extent) the respondents, including the applicant’s alleged conduct in relation to parking on common property, alleged unauthorised bathroom renovations and alleged conduct and inaction on core repair and maintenance when the applicant was on the strata committee preceding the 2021 AGM when he was not re-elected. Having read through that material, I have had regard to what I consider relevant to the issues the present subject of these proceedings for determination and have not discussed the rest.

Orders

90. I make the following orders:

1. Application dismissed.

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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: 02 May 2025