Waddington v The Owners - Strata Plan No 30254

[2025] NSWCATCD 34

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Waddington v The Owners – Strata Plan No 30254 [2025] NSWCATCD 34

Hearing dates:

7 April 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Dr K M George, Senior Member

Decision:

(1) The application is dismissed.

Catchwords:

LAND LAW - Strata title - Removal of a lot owner as a member of the strata committee of the owners corporation

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Lockrey v Rosewall [2022] NSWCATCD 27

Vojkovic v Savva [2023] NSWCATCD 141

Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123

Stolfa v Hempton [2010] NSWCA 218

Owners SP 50276 v Thoo [2013] NSWCA 270

Texts Cited:

Nil

Category:

Principal judgment

Parties:

David Waddington (applicant)
The Owners – Strata Plan No 30254 (first respondent)
Alexander Haege (second respondent)
Hans Adzersen (third respondent)
Pamela Reynolds (forth respondent)

Representation:

Self represented applicant

Self represented respondents

File Number(s):

2024/00078511

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The application to the Tribunal was lodged on 23 February 2024.

2. Relevantly the applicant sought the following order:

If the Tribunal is satisfied that Alex Haege (Unit 12), Hans Adzersen (Unit 4) and Pamela Reynolds (Unit 10) acted in breach of the special resolution of the owners corporation and other breaches of the regulations that they be removed from the strata committee for a period of 2 years s 238.

3. The reference in the proposed order is to s 238 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”).

4. At a hearing on 8 July 2024, the Tribunal made orders by consent. The applicant successfully appealed the decision, and the matter was remitted to the Tribunal for rehearing only in regard to the order outlined above.

5. The matter came before me for final hearing on 7 April 2025.

6. The applicant appeared in person. He relied on the following documents which were admitted into evidence, subject to weight and relevance:

1. Bundle of documents (153 pages) received by the Tribunal on 2 April 2024;

2. Bundle of documents (pages 154 to 172 with written submissions) received by the Tribunal on 9 May 2024;

3. Written submissions (single page) received by the Tribunal on 7 February 2025.

7. Mr Haege appeared by video link and Mr Adzersen and Ms Reynolds appeared in person. As current members of the Strata Committee, they represented the first respondent.

8. The respondents confirmed they relied on the following documents which were admitted into evidence, subject to weight and relevance:

1. Written submissions (4 pages) received by the Tribunal on 28 March 2024;

2. Folder of documents (70 pages) received by the Tribunal on 7 June 2024; and

3. Written submissions and evidence, including affidavits (18 pages in total) received by the Tribunal on 13 March 2025.

9. All parties present gave sworn oral evidence.

10. The parties were each provided an opportunity to make oral submissions to the Tribunal and to ask each other questions. The applicant also made submissions in reply.

11. The applicant identified 3 grounds for the order that he seeks:

1. Mr Haege’s ‘deception’ that he was a lot owner, when he was not;

2. The special resolution regarding laundry renovations; and

3. The appointment of the current strata manager.

Relevant law

12. Section 238 provides:

238   Orders relating to strata committee and officers

(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.

13. The grounds identified by the applicant must be of sufficient magnitude to justify the Tribunal exercising its discretion in favour of removing the strata committee member from office: Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123 at [94].

14. As the Tribunal held in Lockrey v Rosewall [2022] NSWCATCD 27, at [14] – [15], cited with approval in Vojkovic v Savva [2023] NSWCATCD 141 at [88]:

In respect of an application for an order appointing a strata managing agent under s 237 of the SSMA, the Tribunal has previously observed that such an appointment is a serious measure that should not be taken lightly as it removes the democratic process established by the SSMA for an owners corporation to manage its strata scheme: Velastegui v Chan [2021] NSWCATCD 98 ay [76]; see also Gershberg & Troyanovski v Owners Corporation SP 5768 [2011] NSWCTTT 411 at [80].

It necessarily follows that the approach identified in Velastegui v Chan to an application for an order under s 237 should also be taken in respect of an application for an order removing a person from a strata committee under s 238 of the SSMA. Section 9 of the SSMA provides that the owners corporation for a strata scheme has the principal responsibility for the management of the scheme. The regime for self-management of strata schemes established by the SSMA involves the ability of an owners corporation to elect the members of its strata committee: see ss 29(1) and 30(4) of the SSMA. Compelling circumstances would need to be demonstrated to justify the intervention of the Tribunal to override the democratic wishes of the owners corporation by making an order under s 238 of the SSMA. The decisions of the Tribunal establish that such an order should only be made in the clearest of cases.

15. It is the applicant who must establish a legal basis for the order he seeks and prove on the balance of probabilities the facts that are essential for making out his claims.

Ground 1 – Mr Haege’s ‘deception’ that he was a lot owner, when he was not

16. It is not in dispute that:

1. Between 2005 and 2010 Mr Haege owned unit 12 together with his daughter Georgia Haege;

2. Georgia Haege also owned Lot 9 in her own right;

3. Mr Haege ceased being a lot owner in September 2010 when he transferred his share of the title in unit 12 to Georgia Haege;

4. Mr Adzersen, Ms Reynolds and The Owners – Strata Plan No 30254 (“the Owners”) did not become aware that Mr Haege had transferred his share of unit 12 and thus ceased to be a lot owner until April 2024;

5. Mr Adzersen, Ms Reynolds and Mr Haege were appointed to the Strata Committee at the 2024 AGM.

17. The applicant contends that Mr Haege has ‘claimed to be a lot owner’ after divesting himself of unit 12.

18. The applicant relies on the Minutes of a number of AGMs, including:

1. AGM held on 16 April 2024 which, relevantly, records a proxy in favour of Mr A Haege in respect of Lot 9;

2. AGM held on 15 May 2023 which record that ‘Lot 11 – Mr A Haege’ as present and a proxy in favour of Mr A Haege in respect of Lot 9 was recorded. Gordon Robinson Real Estate was confirmed as strata manager at this meeting;

3. AGM held on 6 April 2022 when ‘the owner of Lot 12’ was recorded as present, although the name of that owner was not recorded. The Minutes record that Mr Haege was elected to the Strata Committee, although the identity of the person who nominated him was not noted.

4. AGM held on 2 August 2021 when ‘the owner of Lot 12’ was recorded as present and a proxy in favour of Mr A Haege in respect of Lot 9 was recorded;

5. AGM held on 15 July 2020 when a proxy in favour of Mr A Haege in respect of Lot 9 was recorded. Although Mr Hague was not recorded as present at the meeting, the Minutes record he was elected to the Strata Committee after self nominating;

6. AGM held on 30 April 2019 when a proxy in favour of Mr A Haege in respect of Lot 9 was recorded. Although Mr Hague was not recorded as present at the meeting, the Minutes record he was elected to the Strata Committee after self nominating and appointed as Secretary.

7. AGM held on 20 March 2018 which record ‘A Hague (12)’ as present and a proxy in favour of Mr A Haege in respect of Lot 9. The Minutes record that it was resolved that Mr Haege be elected to the Strata Committee. The Minutes do not record who nominated Mr Haege;

8. AGM held on 17 May 2017 which record ‘A Hague (12)’ as present and a proxy in favour of Mr A Haege in respect of Lot 8 (sic);

9. AGM held on 11 May 2016 when a proxy in favour of H Adzersen in respect of A Haege Lot 12 and G Haege Lot 9 was recorded.

19. Minutes of Strata Committee Meetings record that Mr Haege put forward various motions and, presumably, voted in those meetings. In the Minutes of a meeting on 18 August 2020 Mr Haege is recorded as the Chairman.

20. The applicant claims:

1. Mr Adzersen, Ms Reynolds and the Owners Corporation were misled and deceived by Mr Haege in relation to his ownership;

2. As a result the voting at the AGMs of the last 15 years is ‘invalidated’;

3. Despite the ‘deception’, Mr Adzersen and Ms Reynolds gave ongoing support to Mr Haege;

4. The affidavits of Mr Adzersen and Ms Reynolds ‘cast doubt about the credibility and suitability of their membership of the strata committee’.

21. The respondents’ submissions provide an extract of the sound recording of the hearing on 8 July 2024. It records that Mr Haege gave evidence that:

I always acted as my daughter, who lives in New York, always acted as her proxy and that’s as I understood it. I did have an ownership in the unit after my wife’s death in 2005 when she left everything to the three children that we both had and there were changes made as someone pointed out. In the end Georgia ended up with total ownership and I thought the solicitor would have given the notices as he does for water and everything else, anyway somehow it was overlooked.

22. The respondents submit that:

This oversight was never intentional and was an unfortunate omission rather than a deliberate act of deceit.

23. The affidavit evidence of Mr Adzersen and Ms Reynolds is that ‘until recently’ Mr Haege:

… has represented himself … for Unit 12 of SP 30254 by way of being part owner.

24. Based on this affidavit evidence and the Minutes of the AGMs from 2016, I am persuaded that Mr Haege held himself out to be an owner of unit 12 in the strata scheme, when he was not.

25. I do not accept that he ‘always’ acted as his daughter’s proxy. The Minutes record that at several AGMS he was present in his own right as the apparent owner of unit 12 (or, in an apparent typographical error, unit 11).

26. There is no requirement under the SSMA for a person who divests his interest in a lot to notify the Owners.

27. Mr Hague’s misrepresentation of his ownership is significant because:

1. Only a lot owner is entitled to vote at a general meeting of the owners corporation (s 23(1)); and

2. In at least 3 AGMs Mr Haege was elected to the strata committee. Pursuant to s 31(d), an individual who is not an owner of a lot is only eligible to be elected to the strata committee if he or she is nominated by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee. Such an individual may not self-nominate.

3. Therefore, in 2019 and 2020 Mr Haege was elected to the committee without being eligible. The Minutes do not record who nominated Mr Haege in 2018. However, by failing to disclose that he was not a lot owner, the lot owners present at the meeting could not properly consider whether Mr Haege was eligible for election to the committee.

28. I am therefore satisfied that Mr Haege failed to comply with the requirements of the SSMA this Act by voting at general meetings when he was not eligible and by self-nominating for appointment on the Strata Committee.

29. However, I am not persuaded on the balance of probabilities that Mr Haege engaged in a deliberate deception. It is just as likely that the irregularities were the result of his negligence (and/or that of his daughter), albeit over a lengthy period.

30. In the absence of persuasive evidence that Mr Haege engaged in intentional falsehood, I am not persuaded that his conduct is of sufficient magnitude to justify the Tribunal exercising its discretion in favour of removing him from the strata committee. The lot owners, aware of Mr Haege’s conduct, exercised their democratic right and re-elected him to the Strata Committee at the 2024 AGM, presumably because they assessed he had been making a valuable contribution to the management of the scheme.

31. I am not satisfied that the decision by Mr Adzersen and Ms Reynolds to support Mr Haege’s appointment to the committee in 2024 would justify their removal from the committee. I accept that they genuinely believe Mr Haege has made a valuable contribution to the strata scheme over the years, notwithstanding his failure to disclose he was not an owner, and that this is the reason they support his presence on the Committee.

32. Nor am I persuaded that Mr Adzersen engaged in any sort of inappropriate conduct by nominating Mr Haege for the strata committee at the 2024 AGM and then ‘illegally self nominating’.

Ground 2 - the special resolution regarding laundry renovations

33. The applicant contends that Mr Haege organised the renovation of the common property laundry without the required special resolution, and that a motion to renovate the laundry was defeated at the 2020 AGM.

34. The Minutes of the 2020 AGM on 15 July 2020 record that the following motion was defeated:

That the Owners Corporation SPECIALLY RESOLVES pursuant to sections 108 and 143 of the Strata Schemes Management Act 2015 (“Act”) to engage Mark Fitzgerald to carry our laundry renovations and replace the coin-operated machine.

35. Section 108 of the SSMA provides:

108   Changes to common property

(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

36. There is no dispute that work was conducted in the laundry in around August 2020.

37. If the works conducted satisfied the description in s 106 of the SSMA as repair and maintenance, they are not subject to any requirement of a special resolution: Stolfa v Hempton [2010] NSWCA 218 at [9]-[10].

38. The respondents rely on an invoice from Mark Fitzgerald, plumber, dated 2 August 2020. It states:

Cut out two tubs rusted at base. Set up new waste pipes for drainage from washing machines on right and rear walls. Install gnu taps for washing machines. Remove all rubbish. Work approved by Alex.

39. The invoice claims $1,430.00 for the work.

40. The invoice supports the respondents’ submissions that the work to the laundry was not a ‘renovation’, but renewal and replacement of aged facilities and fixtures, and thus repairs and maintenance within the meaning of s 106. Any change was merely incidental to that renewal and replacement (see Owners SP 50276 v Thoo [2013] NSWCA 270 at [4] to [7]).

41. Similarly, some of the old washing machines were replaced by new machines, and at no cost to the Owners.

42. The applicant bears the onus of proof. I am not satisfied on the evidence before the Tribunal that the work in the laundry amounted to a change to common property within the meaning of s 108. Therefore a special resolution was not required.

43. The laundry work provides no basis for the removal of the respondents from the strata committee.

44. Further, even if I accept the applicant’s evidence regarding other work to, or use of common property which benefits Mr Adzerson’s lot, such work/ access was minimal and I am not persuaded it justifies the removal of any of the members from the Strata Committee.

Ground 3 - the appointment of the current strata manager

45. It is not disputed that Gordon Robinson Real Estate was appointed as the strata manager in 2023, but without a resolution at a general meeting of the owners corporation.

46. The appointment was thus in breach of s 49(2) of the SSMA.

47. The respondents submit that the appointment was urgent due to the unexpected resignation of the then strata manager, after a disagreement regarding remediation of a suspected gas leak and non-compliant pipework.

48. The resignation email of the former strata manager dated 17 April 2023 indicates that the AGM scheduled for 19 April 2024 was postponed at the request of the Strata Committee ‘until a new Strata Management company is appointed.’

49. Gordon Robinson Real Estate was appointed upon the recommendation of Mr Haege.

50. An email from the applicant to Gordon Robinson Real Estate dated 24 April 2023 pointed out the irregularities of the appointment and that ‘Alex Haege acted without proper procedure of authority’, but said ‘I am happy to support your appointment by way of recommendation … Trusting a long and happy relationship.’

51. The Minutes of the AGM held on 15 May 2023 record that subsequently the appointment was confirmed.

52. In these circumstances, I am not persuaded that the breach of s 49(2) of the SSMA is of sufficient magnitude to justify the Tribunal exercising its discretion in favour of removing any of strata committee member from office:

Conclusion

53. I am not persuaded, as the applicant submitted, that the respondents have engaged in a pattern of behaviour whereby they behave as if the Strata Committee is effectively the Owners Corporation itself.

54. I am not persuaded that any respondent engaged in serious misconduct while a member of the Strata Committee, nor failed to exercise due care and diligence of such a magnitude that their removal is justified.

55. It follows that 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 June 2025