VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. OC904/2023
CATCHWORDS	
Owners Corporations Act 2006 (Vic); whether compliance with owners corporation rule; policy adopted by committee to apply rule; s.154 Owners Corporations Act 2006 - owners corporation may take no action in respect of alleged breach.	

APPLICANT	Ken Date	
RESPONDENT	Owners Corporation PS 714706C	
WHERE HELD	Melbourne	
BEFORE	Member Dr R Leshinsky	
HEARING TYPE	Hearing	
DATE OF HEARING	3 September 2024	
DATE OF ORDER	22 October 2024	
CITATION	Date v Owners Corporation PS 714706C (Owners Corporations) [2024] VCAT 1017	

Order
1.	The proceeding is dismissed.

Dr R Leshinsky
Member			

APPEARANCES:		
For Applicant	In person and M Smith	
For Respondents	B Tsandefskis, owners corporation manager and E Loftus, chairperson	

Reasons
Introduction
1	This proceeding was heard on 3 September 2024. By oral decision, the proceeding was dismissed. Upon the applicant, Mr Date, making enquiries about the decision, it was decided on 17 September 2024, that the Tribunal would provide written reasons. The following reasons reflect the oral decision.
2	The development at 35 Spring Street, Melbourne, is a high rise 42 level residential city building. Owners Corporation PS714706C (‘OC’), the respondent, comprises of 242 apartments and some 300 car parking spots. The OC is managed by Civium Holdings Vic, a management company (‘OC manager’) appointed recently by the OC. The OC committee has twelve members. The current OC Chair is Ms Loftus. The OC additional rules were registered with the plan of subdivision in 2017 (‘OC rules’).
What is this proceeding about?
3	Mr Date, for some seven years, has owned apartment 2107 at 35 Spring Street, Melbourne. Mr Date brought these proceedings seeking an order that “…Owners Corporation PS714706C comply with Rule 17.1 of the Rules of Owners Corporation for 35 Spring Street and Rule 138 subsection 2 of the Owners Corporation Act 2006 Part 8”.
4	Rule 17.1 states: “Car spaces may only be used for the purpose of parking one vehicle (or motorcycle) per car space”.
5	The OC Chair explained that the OC committee is aware of several issues within the building which do not comply with the precise wording of the OC rules including: the number of pets in lots; shopping trolley storage on car spaces; and storage of bicycles and motorcycles. The OC manager and OC Chair explained further, that given the expense and logistics involved in putting a special resolution to OC members and the likely lack of response, in the absence of any significant concern from or inconvenience to residents, a special resolution to change the OC rules is not, at this stage, justified, but can be considered in the future. 
6	The OC applied the OC rules with long-established policies (‘policy’) that supports the implementation of the OC rules. The policy predates the current OC manager and OC Chair and is considered by the OC as the rule compliance process. Evidence from the OC is that the policy for the implementation of rule 17.1 entails the OC allowing owners who request permission from the OC committee, to store a motorcycle and car on their private parking spot provided there is no impingement on the common property nor with any other lot owner’s parking space.
7	A further OC policy operates concurrently for the OC to allow an empty shopping trolley to be stored within a car parking space.
8	I accept that there are approximately six motorcycles/motor scooters parked in car spaces in addition to a car throughout the upper and lower car parking areas. There is no evidence before the Tribunal that the OC manager, OC Chair or the OC committee benefited in any way from applying rule 17.1 or any other OC rule or policy. Further, there is no evidence before the Tribunal that Mr Date applied to have a motorcycle, in addition to his car, to be parked in his parking space, nor has any request for this been rejected in the past by the OC.
9	It is common ground that from time to time, Mr Date stored a trolley in his car space. There is some contention between the parties as to whether, following a dispute with Mr Date in relation to the storage of several empty boxes in his car space and on common property, Mr Date lodged a complaint with the OC in June 2023 as to the way rule 17.1 had been applied. The OC submitted that it was from this incident that Mr Date lodged a complaint that the OC had failed to enforce Rule 17.1 as it is worded, and that the OC had engaged in ‘selective application’ of Rule 17.1.
10	The OC set up a Grievance Committee to investigate the applicant’s complaint. The Grievance Committee met to consider the complaint and asked Mr Date to meet with them to discuss the issue. It is common ground that Mr Date did not meet with the Grievance Committee. The Grievance Committee then rejected the allegation in the complaint and recommended that no action be taken in respect of the alleged breach of rule 17.1, and this was based on the OC policy in place to apply rule 17.1.
11	Mr Date contends that there are other unhappy owners concerned with the way the rule is interpreted but there is no evidence that any other owners joined the applicant in this proceeding nor brought to the Tribunal, any prior proceeding on this issue.
12	I find from the best evidence before the Tribunal, there have been no formal complaints received from other owners/residents, in relation to the parking of a motorcycle/motor scooter in a car space in addition to a car on OC approved parking spaces. Further, there is no evidence before the Tribunal of any “selective application” of rule 17.1 by the OC.
Is there a breach of the OC Act?
13	Under s.11 of the OC Act, the committee has delegated powers to run the OC on a day-to-day basis. This is also done with the assistance of the OC manager. For many years, the OC committee with the OC manager have been operating by applying the OC rules and various policies and these include rule 17.1 permitting a car and motorcycle/scooter on a private car parking spot with permission to do so from the OC. From the evidence before the Tribunal, I find the OC committee consistently applied this policy for rule 17.1, and that it accords with the powers delegated to the OC committee to run the OC and building at 35 Spring Street, Melbourne.
14	Mr Date has raised no claims that the OC committee or manager have acted contrary to their obligations and functions under the OC Act. There is no evidence before me that the OC acted not in good faith in relation to the policy relating to rule 17.1.
Is the OC justified to follow the committee policy for Rule 17.1?
15	In relation to Mr Date’s complaint and his decision not to attend a Grievance Committee invitation to discuss the breach of rule 17.1 he raised; the OC relied on ss.153 and 154 of the OC Act ‘to take no action in respect of the alleged breach’.
16	The OC published all OC committee meeting minutes on the OC management portal for which all lot owners, including the applicant, had access, and this included information about the OC rules and policies. The OC committee also provided communication on rules and how they operated with the OC committee policies in their regular building newsletter. Further, the OC committee ran two social events each month, and all residents were invited to attend. This provided residents with an opportunity to meet with OC committee to discuss any items of concern as well as to meet with other residents. There is no evidence before the Tribunal that Mr Date used these venues to discuss the application of rule 17.1 and the policy that was being relied upon to give it effect.
17	Given all the information available about the OC rules and policy, and opportunities to discuss them, I find that other than Mr Date, no owner/resident has complained about the policy accompanying rule 17.1. Mr Date has not applied to park a motorcycle/motor scooter and car on his parking spot, nor has this been denied to him in the past.
Conclusion
18	There is no evidence before the Tribunal that the OC manager or OC committee did not act in good faith regarding the application of rule 17.1 with the established policy.
19	I find the OC consistently followed its internal governance regarding the application of rule 17.1 with its policy. Further, I find the OC was entitled to follow the process in ss.153 and 154 of the OC Act to take no action against the “alleged breach” raised by Mr Date.
20	Accordingly, I find the OC by its consistent and concurrent use of the policy with rule 17.1, complied in good faith with the internal OC governance regarding the application of rule 17.1.
21	The proceeding is dismissed.

Dr R Leshinsky
Member