THE OWNERS OF 875 WELLINGTON STREET STRATA PLAN 13599 -v- KAMIL [2026] WADC 72

[2026] WADC 72 [2026] WADC 72 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : THE OWNERS OF 875 WELLINGTON STREET STRATA PLAN 13599 -v- KAMIL [2026] WADC 72 CORAM : CLEARY DCJ HEARD : 24-31 JULY & 1 AUGUST 2025 DELIVERED : 14 AUGUST 2026 FILE NO/S : CIV 3637 of 2022 CIV 3178 of 2023 BETWEEN : THE OWNERS OF 875 WELLINGTON STREET STRATA PLAN 13599 Plaintiff AND EDDIE AHMED KAMIL Defendant AND EDDIE AHMED KAMIL Plaintiff by counterclaim AND THE OWNERS OF 875 WELLINGTON STREET STRATA PLAN 13599 Defendant by counterclaim -- 1 of 182 -- [2026] WADC 72 [2026] WADC 72 [JM] Page 2 Catchwords: Strata titles - Failure to pay strata levies - Alleged breaches of statutory obligations by strata company disentitling plaintiff from rendering levies - Counterclaim - Damages - Negligence - Illegitimate pressure - Unjust enrichment Legislation: Evidence Act 1906 (WA) Limitation Act 2005 (WA) Strata Titles Act 1985 (WA) Result: Plaintiff's actions in CIV 3637 of 2022 and CIV 3178 of 2023 successful Defendant's counterclaim unsuccessful Representation: Counsel: Plaintiff : Mr C S Williams Defendant : Mr P G McGowan Plaintiff by counterclaim : Mr P G McGowan Defendant by counterclaim : Mr C S Williams Solicitors: Plaintiff : Solomon Brothers Lawyers Defendant : Butcher Paull & Calder Plaintiff by counterclaim : Butcher Paull & Calder Defendant by counterclaim : Solomon Brothers Lawyers Case(s) referred to in decision(s): Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 Clay and the Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121 -- 2 of 182 -- [2026] WADC 72 [2026] WADC 72 [JM] Page 3 Commonwealth Bank of Australia v Dinh [No 2] [2019] WASC 456 Glasby and The Owners of 84 Clydesdale Street Como Strata Plan 9012 [2021] WASAT 136 Morgan v Banning (1999) 20 WAR 474 The Owners of 5 & 7 Upton Place, Langford Strata Plan 38498 v Swift [2024] WADC 35 -- 3 of 182 -- [2026] WADC 72 [2026] WADC 72 [JM] Page 4 Table of Contents The building .............................................................................................................................. 7 The actions ................................................................................................................................ 8 The plaintiff's claims .............................................................................................................. 8 The strata company and its resolutions supporting the plaintiff's claims .......................... 9 Mr Kamil's response and claims ........................................................................................... 10 Breach of financial obligations such that the levies were rendered without power ............. 10 Funds raised for a 'special levy' ............................................................................................ 10 Matters paid for outside the plaintiff's powers ..................................................................... 10 Payment made to owners relevant to the Central Apartment Group .................................... 11 The strata company's duties under section 91 of the Strata Titles Act 1985 (WA) .............. 11 Repeated breaches and failing to ensure there was a person responsible for looking after matters to do with common property .................................................................................... 12 Refunds given to guests because there was no gym or laundry and the lift breaking down 12 Negligence ............................................................................................................................ 12 Illegitimate pressure and unjust enrichment ......................................................................... 12 The counterclaims................................................................................................................. 13 The plaintiff's responses to Mr Kamil's claims ................................................................... 13 The evidence ......................................................................................................................... 14 Gregory Wheeler .............................................................................................................. 14 Daniel O'Sullivan.............................................................................................................. 17 Stafford Beamish .............................................................................................................. 19 Mr Wheeler's reliability and credibility ............................................................................... 22 Eddie Kamil ............................................................................................................................ 23 The invoices and claims for payment ................................................................................... 26 The incorporation of the company and preparation of invoices ....................................... 28 The invoices ...................................................................................................................... 29 The common claims for $11,440 ...................................................................................... 32 The common invoice numbers ......................................................................................... 33 Dates and descriptions on invoices ................................................................................... 37 Rounded figures and general claims in invoices or without invoices .............................. 38 Delays in asserting his right to payment............................................................................... 41 Invoices and payments for third parties ................................................................................ 44 Summary of Mr Kamil's evidence ........................................................................................ 45 Should I have heard from the 'strata company'? ................................................................ 49 Consideration ........................................................................................................................ 49 -- 4 of 182 -- [2026] WADC 72 [2026] WADC 72 [JM] Page 5 Is Mr Kamil time-barred from making a claim for money paid and work done prior to 25 July 2019? ........................................................................................................................... 50 The functions and obligations of a strata title company ..................................................... 53 General obligations ............................................................................................................... 54 Financial obligations ............................................................................................................ 55 Administrative fund - Section 100(1) of the Strata Titles Act 1985 (WA) ...................... 55 Reserve fund - Section 100(2) of the Strata Titles Act 1985 (WA) ................................. 55 10-year plan - Section 100(2A) of the Strata Titles Act 1985 (WA) ............................... 56 Budget and expenditure - Section 102 of the Strata Titles Act 1985 (WA) ..................... 56 The power to render levies - Section 100 of the Strata Titles Act 1985 (WA) ................ 57 Did the plaintiff breach its financial obligations under the Act and if it did, what are the consequences? ......................................................................................................................... 57 The absent 10-year plan and the effect on the budget .......................................................... 57 Consideration .................................................................................................................... 59 Mixing funds ........................................................................................................................ 66 The particulars in relation to this defence ........................................................................ 66 Mr Kamil's argument in relation to the transfers .............................................................. 67 The transfer of $120,000 .................................................................................................. 67 The two payments in July 2018 ........................................................................................ 69 The resolutions themselves ............................................................................................... 69 Special levies ........................................................................................................................ 70 Did the plaintiff pay for items outside of their power? ........................................................ 72 Surveillance devices ......................................................................................................... 72 $2,000 for the laundry of Inner City Apartment Hotel ..................................................... 74 Did the plaintiff breach its duties in relation to the building, Mr Kamil's property and the provision of services? ....................................................................................................... 74 Breach of duty to keep in good and serviceable repair common property ........................... 74 What is the duty and how is it to be carried out? ................................................................. 75 The parties' arguments on the evidence ............................................................................ 78 The incorrect payment to the owners associated with Central Apartment Group in the 2022 action .................................................................................................................................... 83 Removing the sign in the 2022 action .................................................................................. 85 $21,000 for State Administrative Tribunal proceedings in the 2022 action ......................... 88 Refunds to customers because of the closed laundry and gym and broken lift in the 2023 action .................................................................................................................................... 88 Are some of Mr Kamil's claims not claims by him but by his company? ............................ 89 The work done and expenses claimed .................................................................................. 91 Orders ...................................................................................................................................... 93 -- 5 of 182 -- [2026] WADC 72 [2026] WADC 72 [JM] Page 6 CIV 3637 of 2022 ................................................................................................................. 93 CIV 3478 of 2023 ................................................................................................................. 93 -- 6 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 7 CLEARY DCJ: 1 Mr Eddie Ahmed Kamil owns units in a strataed five-storey residential building used as short-stay rental accommodation. He is one of two operators who manage a hotel business at the building. He did not pay his strata levies for 2022 and 2023. He says he does not have to. He says the strata company breached their statutory obligations in a number of ways and therefore had no power to raise them. In any event, he has spent so much time and money on repairs and maintenance of common areas in the building and had to refund money to guests that he has more than covered the amount of the levies due, and, in fact, the strata company owes him money. 2 The strata company admits it breached its obligation by not having a 10-year plan in 2022. It says that that does not result in levies being rendered without power. It is suing for those levies. The company denies it has breached other financial obligations or failed to maintain the building or to ensure Mr Kamil's property was not damaged. The company says Mr Kamil has not proved that he spent any time or money on the building's common areas, nor that his property was damaged, or the reasons he had to refund booking fees to his guests. The building 3 The Owners of 875 Wellington Street is the strata company (strata company) of a five-storey residential strata titles scheme established on 8 July 1988. 4 The strata scheme comprises 80 privately owned lots configured as apartments along with common property, including a lobby and 51 parking bays.1 5 The apartments in the strata scheme are rented exclusively to short-stay occupants. There are no long-term residents. 6 Two lot owners in the strata scheme operate competing guest booking businesses for their apartments from the lobby. These are Greg and Heidi Wheeler (the Wheelers) who operate a business named Inner City Apartments, subsequently Wheeler Apartment Hotel. Mr Kamil operates Perth City Apartment Hotel. The remaining lot owners in the strata scheme have elected to have their apartments managed by one or the other of these businesses. 1 Because an owner in a strata scheme is given units per lot, I will refer to those units as units, and the actual accommodation as apartments or rooms. -- 7 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 8 7 At the time of the hearing Mr Kamil owned 30 units and managed another three or four2 and the Wheelers or their companies owned 31 apartments and managed another 13 or 14 by leasing them from their owners.3 8 Each of the businesses operates a desk in the foyer, greeting their respective guests and handling any enquiries in relation to the apartments they own or manage. 9 As became evident in evidence, the relationship between Mr Kamil and the council of owners has been difficult, and the administration of the strata company and the building has been fraught with social issues accompanying clientele and the fractured relationships within the owners. This is not the only litigation the parties have been involved in. The actions The plaintiff's claims 10 By writ of summons dated 25 August 2022 (the 2022 action) the Owners of 875 Wellington Street strata plan 13599 claim from Mr Kamil unpaid monies due pursuant to s 100 of the Strata Titles Act 1985 (WA) (the Act). The claim for each lot is made up of some or all of quarterly administration and reserve and special levies and interest. The owners' claim amounts to $136,406.80 plus interest. 11 By writ of summons dated 17 July 2023 (the 2023 action) the Owners of 875 Wellington Street strata plan 13599 claim from Mr Kamil unpaid monies due pursuant to s 100 of the Act. The claim for each lot is made up of some or all of quarterly administration and reserve and special levies and interest. The owners' claim amounts to $433,386.95 plus interest. 12 The actions are consolidated. 13 Mr Kamil admits he has been notified of the levies and has not paid them4 and the calculation of the levies as set out by the plaintiff in its actions.5 2 ts 184. 3 ts 99. 4 Amended Consolidated Defence and Counterclaim dated 25 June 2025, pars 3 and 4 (Amended Consolidated Defence and Counterclaim). 5 ts 367. -- 8 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 9 14 The parties agreed, as do I, that the jurisdiction of the State Administrative Tribunal (SAT) is not exclusive, and the District Court has jurisdiction to deal with both the plaintiff's claims and the matters raised in defence and counterclaim of those claims.6 The strata company and its resolutions supporting the plaintiff's claims 15 At the relevant times the Wheelers were both members of the council of owners. There were three other members. 16 In 2021 and 2022 the strata company brought to its members resolutions enabling it to raise funds to fulfil its obligations under s 100 of the Act. The resolutions were passed. 17 The first of the resolutions was passed at an annual general meeting (AGM) held on 10 December 2021. The minutes of that meeting became Exhibit 135. The contribution was for $495.05 per unit entitlement for the administrative fund, $43.54 per unit entitlement for the reserve fund and $80.21 per unit entitlement for what was termed in the resolution a 'special levy'. 18 On 29 June 2022 an extraordinary general meeting (EGM) was held, the minutes of which became Exhibit 172. A resolution was passed for a 'special levy' to upgrade a fire detection and occupant warning system. In addition, this fundraising included funds for the removal of the asbestos anticipated in the December 2021 'special levy'. 19 The final relevant resolution was passed at an AGM held on 22 December 2022. The minutes of that meeting became Exhibit 190. The contribution was for $1331.30 per unit entitlement for the administrative fund and $47.85 per unit entitlement for the reserve fund. There were no funds sought for a 'special levy'. 20 The levies were payable in instalments. 21 There was no 10-year plan at the time of passing the 2022 budget. 22 The strata company implemented a 10-year plan for the 2023 year, recorded in the minutes of the 2022 AGM. 23 I am satisfied, from the minutes produced, that those levies were passed according to the practice required by the Act. That does not 6 The Owners of 5 & 7 Upton Place, Langford Strata Plan 38498 v Swift [2024] WADC 35 [20] - [38]. -- 9 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 10 mean, however, that the strata company had the power to issue them nor that Mr Kamil was obligated to pay them. Mr Kamil's response and claims 24 Mr Kamil has responded with positive defences in both actions. Breach of financial obligations such that the levies were rendered without power 25 Mr Kamil alleges that as there was no 10-year plan, the budgets were not prepared in accordance with the Act, and the levies were not determined, resolved or collected within the power of the strata company, and any expenditure resulting was without power. This defence relates only to the 2022 action.7 26 Further, a motion being passed by simple majority at the AGM of 17 December 2020, $120,000 was transferred from the 'Sinking Fund' to the administrative fund in the financial year 2021/2022. Two other transfers similarly occurred in 2018. The calculations for the levies for each fund is different. This claim relates to both the 20228 and the 20239 actions. 27 Accordingly, the levies were not determined, resolved or collected within the power of the strata company, and any expenditure resulting was without power in either year. Funds raised for a 'special levy' 28 Mr Kamil says that the Act does not permit the creation of a 'Special Levy' for no purpose and therefore the funds for that levy are not due and payable. Or, if there is such a power, the levy is not subject to s 100 of the Act and therefore interest is not claimable. This claim relates to both the 202210 and 202311 actions. Matters paid for outside the plaintiff's powers 29 Mr Kamil claims that the strata company spent money on sweeping for surveillance devices between July 2020 and 10 December 2021 around the Wheelers' business desk and wall area, an expenditure it was not authorised to carry out, that area not being common property. 7 Amended Consolidated Defence and Counterclaim, pars 2(a)(i) and 2(a)(ii). 8 Amended Consolidated Defence and Counterclaim, par 2(a)(iii). 9 Amended Consolidated Defence and Counterclaim, par 30(a). 10 Amended Consolidated Defence and Counterclaim, pars 2(c) and 2(d). 11 Amended Consolidated Defence and Counterclaim, pars 30(c) and 30(d). -- 10 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 11 30 Further, he claims that the strata company spent money on a laundry of the Wheelers' business in 2018, an expenditure it was not authorised to carry out. 31 These particulars are raised in the 2022 action,12 and while the allegation of the plaintiff making payments outside its powers is raised in the 2023 claim, there are no particulars.13 Payment made to owners relevant to the Central Apartment Group 32 Mr Kamil alleges that the strata company is responsible for a payment of $96,215.97 wrongly paid from the strata company's funds to owners in the strata scheme whose apartments were managed by another entity, Central Apartment Group (CAG). He says that the owners owed him a duty not to make the error that saw the payment made. This relates only to the 2022 action.14 33 Mr Kamil claims damages for the breaches of duties owed to him by the plaintiff.15 The strata company's duties under section 91 of the Strata Titles Act 1985 (WA) 34 There is no doubt a strata company owes a duty to the owners under s 91 of the Act, being generally to maintain and control common property. Mr Kamil alleges breaches of the Act in several ways. He also says that given he runs a business from the premises, the plaintiff owes him a duty to keep in good and serviceable repairs, properly maintain and, if necessary, renew and replace the common property.16 35 He alleges that the plaintiff has repeatedly failed to comply with its statutory obligations under s 91, the failure leading to the strata company's insurer declining to renew cover, and him having to spend $21,000 in an action in the SAT to force the plaintiff to comply with its obligations.17 This relates only to the 2022 action. 12 Amended Consolidated Defence and Counterclaim, pars 2(f)(i) and 2(f)(ii). 13 Amended Consolidated Defence and Counterclaim, par 30(f). 14 Amended Consolidated Defence and Counterclaim, par 21(b). 15 Amended Consolidated Defence and Counterclaim, par 22. 16 Amended Consolidated Defence and Counterclaim, par 11(a) in relation to the 2022 claim and par 37 in relation to the 2023 claim. 17 Amended Consolidated Defence and Counterclaim, pars 15 - 17. -- 11 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 12 36 Further, Mr Kamil alleges that the plaintiff has a duty not to damage his property within the property, and it has done so by organising Greg Wheeler to remove Mr Kamil's sign from the front of the property, worth $4,500. He claims damages. This relates only to the 2022 action.18 Repeated breaches and failing to ensure there was a person responsible for looking after matters to do with common property 37 Mr Kamil claims that as a result of the repeated failure to comply with its statutory requirement under s 91 of the Act and a failure to ensure that there was a person responsible for generally looking after matters to do with the common property, he has spent money or performed work for the benefit of the plaintiff.19 38 Particulars of his expenditure and work are set out in two tables in relation to the 2022 action, and, in a Scott Schedule, and two tables in relation to the 2023 action and a Scott Schedule. Refunds given to guests because there was no gym or laundry and the lift breaking down 39 In the 2023 action, Mr Kamil claims that a further breach of the plaintiff's duty to keep in good and serviceable repairs, properly maintain and, if necessary, renew and replace the common property occurred when the company did not keep in good and serviceable repairs the lift, gym and laundry. As a result, he was required by various guests to refund their bookings in total. The total amount claimed by Mr Kamil is $5,822.20 Negligence 40 He pleads that by its breach in relation to the upkeep and repair of the property, the removal of his sign and the payment to CAG, the plaintiff was negligent, and he has suffered loss and damage as a result.21 Illegitimate pressure and unjust enrichment 41 He pleads that by repeatedly failing to comply with its statutory requirements under s 91, s 100(2A) and s 102(2)(a) of the Act the plaintiff has put illegitimate pressure on him which has caused him to 18 Amended Consolidated Defence and Counterclaim, pars 11(c) and 18 - 20, 22. 19 Amended Consolidated Defence and Counterclaim, pars 13, 14, 22, 23, 38. 20 Amended Consolidated Defence and Counterclaim, par 37. 21 Amended Consolidated Defence and Counterclaim, pars 8 - 22 and 24. -- 12 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 13 pay for repairs to the common areas22 as set out in his pleadings.23 As a result, the plaintiff has been unjustly enriched by the amount of works done and paid for by him and he is entitled to restitution in that amount.24 These are pleaded as both the basis of him not having to pay his strata fees but also his counterclaim. The counterclaims 42 Mr Kamil repeats the allegations contained in his defences as supporting a counterclaim in the amounts claimed. 43 As of 25 June 2025, the total amount claimed by Mr Kamil in relation to the 2022 action for money spent and work done on the common area was $423,84.76. That amount was adjusted by $4,800 less on the last day of trial. 44 The total amount claimed by Mr Kamil in relation to the 2023 action for money spent and work done on the common areas is $89,689.65. The plaintiff's responses to Mr Kamil's claims 45 The plaintiff claims that it validly raised levies. Those levies being so raised, Mr Kamil should be ordered to pay them. 46 The plaintiff admits that in 2022 it was in breach of s 100(2A) of the Act. However, the plaintiff says that neither that, nor the other alleged breaches in 2022, either of themselves or together, render the expenditure, and therefore the levies supporting them, without power. At worst, it says, although maintaining its denial, the levies may have been without power in 2022 as they relate to the reserve fund. 47 It denies the 'mixing' of funds but admits that it transferred money from the reserve fund to the administrative fund to facilitate the payment for work done. The plaintiff denies that the other alleged actions or breaches occurred, or resolutions were without power, or led to miscalculations or unauthorised expenditure. It says it is not responsible for the payment made by the then strata manager relating to the CAG as this was an error made by the strata manager. 22 Amended Consolidated Defence and Counterclaim, pars 13 and 25 - 26. 23 Amended Consolidated Defence and Counterclaim, par 23. 24 Amended Consolidated Defence and Counterclaim, pars 13 and 27 - 28. -- 13 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 14 48 The plaintiff says that the alleged mixture of funds in 2023 would not render the levies and resulting expenditure without power and invalid. The plaintiff denies that the other alleged actions occurred, or were without power, or led to miscalculations or unauthorised expenditure. 49 The plaintiff denies it has breached any of its obligations other than having a 10-year plan in 2022. It says that that breach did not lead to an inability to perform any work or incur expense for the upkeep of common property. It says that the evidence of Mr Kamil and the exhibits tendered do not otherwise prove any breach, do not prove Mr Kamil needed to perform any work or had the permission to do so on common property and do not prove he paid for the upkeep of common property or refunded any guests due to any breach on the part of the plaintiff. Further, the plaintiff says that some of the claims made by Mr Kamil are statute barred due to time and others are claims that should have been made by his company, not him personally. 50 If I find that the plaintiff's levies were rendered within power, and there were no other breaches of duties such that the levies are valid, then I would find that the levies were due and owing and enter judgement for the plaintiff. I would then move to determine Mr Kamil's counterclaim. 51 Even if I find against the plaintiff, then, although I will have found that Mr Kamil has effectively defended their action, I must still determine Mr Kamil's counterclaim. The evidence Gregory Wheeler 52 Gregory Wheeler is a substantial owner at 875 Wellington Street. 53 He, his wife Heidi and associated companies own approximately 31 lots, and together controll more than 40 units within the building. 54 Through Wheeler Apartment Hotel (formerly Inner City Apartments), he operated a short-stay accommodation business from the complex. 55 He had served on the council of owners from approximately April 2017 - November 2019 and again from about November 2020 onwards. By the time of trial, he was secretary of the council of owners. He attended the building regularly when in Perth, typically once or -- 14 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 15 twice a week or more depending upon circumstances. During those visits he inspected the condition of the building, reviewed issues raised by management staff, dealt with council of owners matters and monitored the operation of his accommodation business. 56 Monitoring the condition of the common property is one of the first things he does when visiting the premises, which he started to do in 2017. 57 Maintenance issues are addressed through the strata management system. 58 In relation to the cleaning of the building, including the common areas, Nepal Cleaning Services (Ravi Bhandari) previously held the cleaning and maintenance contract. From 1 August 2022, Greg Wheeler Contracting, one of his companies, received a work order from First Western Realty to undertake cleaning and minor maintenance of the common areas. Greg Wheeler Contracting thereafter employed cleaners and maintenance staff to service the common property. Daniel O'Sullivan was employed by Mr Wheeler's company to supervise daily inspections and direct maintenance work. Mr O'Sullivan checks all common areas every morning, goes for a walk and gets ready for the day and tells the employees what to do. The team includes a maintenance person. 59 Mr Wheeler's knowledge of maintenance required and damage to the property came from both his own observations and information from his manager. 60 Mr Wheeler could not recall, as a member of the council of owners, being made aware of any damage or disrepair of the common property at any time.25 Further, he thought that before his company had the cleaning contract, the state of the property was 'good' and Ravi had the contract to clean and it was 'quite good'.26 There was nothing, either before or after his company took over, that was not attended to; everything was maintained.27 61 These are curious answers, and I will address why that is my view after I have summarised the evidence of Mr O'Sullivan and Mr Beamish. 25 ts 102. 26 ts 102. 27 ts 103. -- 15 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 16 62 Mr Wheeler agreed that as a member of the council of owners he was aware of the City of Perth letter which became Exhibit 120. That is a letter raising for the strata company's rectification of items relating to fire safety and management. He agreed that he was aware, as a member of the council of owners, that the strata company had difficulty maintaining ongoing insurance. He said, 'We had a lot of trouble getting this building insured'.28 He was shown an email about an insurer declining to accept the risk, and he agreed he more than likely saw that communication. The letter from the underwriter became Exhibit 128 and the email Exhibit 161 and I accepted them not for the truth of their contents, but as communications from an insurer about the insurer no longer covering the building, and Mr Wheeler being aware of that. 63 Mr Wheeler agreed that he was at the 2021 AGM and a member of the council of owners when an item was raised in relation to the 'Lack of action on maintenance',29 with a significant list of maintenance and repair issues raised at that meeting under an item expressing a lack of confidence in the council of owners. 64 Mr Wheeler agreed that he was aware of the 25 WorkSafe notices for improvement received by the owners when he was on the council of owners. These became Exhibits 198 - 224, and I accepted their tender on the same basis as Exhibits 128 and 161. These were delivered when his company had the cleaning contract. 65 Mr Wheeler's evidence was that when he observed damaged or defective common property repairs were arranged and defects were remedied, all by the cleaning contractor, and he could not recall examples of known common property defects simply being left unrepaired; everything brought to his attention was ultimately remedied. 66 In relation to work performed by Mr Kamil, Mr Wheeler said he did not see Mr Kamil carry out any work, nor did he see him directing workers to perform maintenance work on common property. As far as he was concerned, any work performed by someone other than the cleaner or his cleaning company after August 2022 would not have been authorised. I find it difficult to accept that evidence when there is evidence of other contractors being used to perform repairs and maintenance, such as on the lifts and the swimming pool. 28 ts 114. 29 ts 115 and Exhibit 135. -- 16 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 17 67 Substantial closed-circuit television (CCTV) upgrades were undertaken because of vandalism and security concerns and cameras were installed throughout the complex. Police regularly sought footage and security monitoring. This was important because of the nature of incidents occurring at the property. He personally paid a contractor for installation work and had not yet been reimbursed. He was challenged as to whether a work order existed for the installation of the cameras, and he maintained that authority existed notwithstanding an email from First Western Realty stating no work order had been issued. 68 Mr Wheeler denied that strata company funds were used for the benefit of his accommodation business. He maintained that expenses incurred were related to building operations rather than for his private benefit. 69 In summary, he said that the building experienced ongoing vandalism, security and maintenance problems, but defects were generally repaired when identified. Daniel O'Sullivan 70 Daniel O'Sullivan was employed by the Wheeler apartment business from 11 March 2021. He initially worked as an operations manager, primarily concerned with apartment renovations, front desk supervision and hotel operations. In about March 2022 he became manager of the business, and from about August - October 2022 his responsibilities expanded to include daily oversight of common area cleaning and maintenance after Greg Wheeler Contracting obtained the cleaning contract. 71 From August 2022, Mr O'Sullivan took on a role that saw him present at the building Monday - Friday, on behalf of Greg Wheeler Contracting. He starts his day by walking around the complex outside and then doing a handover with the night porter. He then walks through the building looking out for graffiti, broken fire extinguishers, broken doors and any other damage to the building. If there are dangers to occupants, he makes the area safe and tries to fix it immediately if it is within his capabilities to do so. If he is unable to do the work himself, he notifies the strata manager and has them create a work order. He meets tradesmen on site but also spends a portion of his day going through the CCTV footage. 72 He only works Monday - Friday and is not at the building at night or much beyond about 2 pm. -- 17 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 18 73 He thought that when he first became involved with the building in 2021 the cleaning contract was being performed by a man named Ravi of Nepal Cleaning and maintenance was done by Mani Maintenance, or something like that name, who he thought was a contractor of the then strata manager. 74 Prior to August 2022, however, while he did walk through each floor probably each day, he was more interested in matters that related to Mr Wheeler's business rather than the building as a whole. 75 He could not think of any time when he had raised an issue with the strata management company that had not been attended to. 76 He said police attended the building frequently, sometimes several times per week and occasionally more than once in a day for matters including welfare checks, curfew checks,30 guest complaints and other incidents. 77 Mr O'Sullivan accepted that throughout his employment there had been ongoing problems with graffiti, rubbish accumulation in the hallways and car park and many damaged doors. He said graffiti and rubbish were recurring issues requiring continual attention. 78 When he discovered issues, he took a time-stamped photo of the issue and sent it to the strata manager, then either performed or organised the work himself or asked the strata manager to raise a work order and to send someone to fix it. 79 Mr O'Sullivan described several occasions where he observed work being done on common property that he did not believe had been arranged through the strata manager: 1. He saw a man known to him as Brad laying second-hand carpet over an area of exposed carpet near units 101 - 104 on Level 1. He later arranged replacement of that carpet pursuant to a WorkSafe improvement notice. 2. He saw one of Mr Kamil's cleaners vacuuming a small area near lifts on Level 4. He regarded this as unusual because it was not ordinarily done by Mr Kamil's staff. 30 By which I assume he is referring to the clientele being on bail conditions or other court order that they must be at their residential premises at certain times. -- 18 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 19 3. He arranged a quote for painting part of the foyer and submitted it to the strata company. The following day he saw Aaron Smith, who he had seen working behind Mr Kamil's reception desk, painting the area. He said the work was not done by the painters who provided the quote, there was no warning signage, the area was not cordoned off, and he regarded the work as unsatisfactory. He photographed the work and later the strata manager approved the professional painters' quote and the area was repainted. 80 In relation to Mr Kamil himself, the only time Mr O'Sullivan could recall seeing him do any work was attempting to remove a broken key from a common area lock, although a locksmith was subsequently called by Mr Kamil to complete the repair. However, a master key could not be supplied by Mr Kamil's locksmith, and the strata manager organised for another locksmith to attend the property, change the lock and issue a new key. He thought this was within the 12 months prior to the trial. 81 When Mr O'Sullivan started at the property there were only three cameras. Later approximately 23 additional cameras were installed and eventually he monitored about 65 cameras. His role included reviewing footage after incidents, recording incidents, providing footage to police and monitoring building security. 82 He had never personally read the cleaning contract but understood that Greg Wheeler Contracting cleaned all common areas. 83 In relation to the pool, Mr O'Sullivan said Greg Wheeler Contracting tested pool water and cleaned pool surrounds, while a specialist pool contractor attended weekly for maintenance and chemical testing. 84 He agreed he was involved in the removal of a sign at the front of the hotel however he said that this involved the removal of stickers only, not destruction of the signboard itself. Stafford Beamish 85 Stafford Beamish is the managing director of Strata Property WA and the designated strata manager for the strata company at 875 Wellington Street. Strata Property WA took over management of the strata company in October 2022. -- 19 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 20 86 His role includes administration of the strata company's finances, organising maintenance, paying invoices, supporting the council of owners and conducting meetings. 87 Mr Beamish described the overall condition of the building as 'fair'.31 88 He was aware that the cleaning was done by contract between the Wheelers and the strata company, but he has not facilitated any payments for that contract. 89 He has physically attended the property only about 4 - 5 times since October 2022. Those attendances were mainly for maintenance-related meetings and dealing with two rounds of WorkSafe improvement notices. It was not his job to attend to and determine issues that need fixing. 90 Since taking over, Strata Property WA has assisted the strata company change the fire management company to obtain a higher level of routine service and from then there was routine servicing of the lift, swimming pool, gardens and roof safety systems. 91 Strata Property WA also responded to any ad hoc repairs that came through, such as a broken window or sewer blockages. When this occurred a work order was issued. If he assessed it as an imminent risk to safety or damage to the building he would action it with a pre-authorised amount he could work under. However, he was also aware of the financial situation of the strata company and 'triaged' through that prism as well. Therefore, it was not always that he would exercise his ability to order repairs or work even though he could have with that pre-authorised amount. 92 Strata Property WA operates a reactive system, in that issues are reported by owners through a portal, email or telephone and he then triages them according to urgency. For example, broken glass or plumbing leaks were treated as urgent; graffiti was considered low priority and generally referred to the council of owners because there was no immediate risk to health or the building. To the best of his recollection, virtually all reported issues were actioned, however, whether issues were addressed relied on owners and occupants reporting these issues to his company. 31 ts 160. -- 20 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 21 93 All his staff monitored the portal and they would also receive phone calls and emails about repairs required. 94 In relation to mould complaints, he said the issue was referred to the council of owners and the relevant rooms were ultimately inspected and remediated at the strata company's expense. 95 There was only one significant matter that was not remedied, a damaged fire door in 2023, which he said could not be addressed because of the building's financial position and because the damage appeared to have been caused by a resident or visitor, rather than being a strata responsibility. Otherwise, since his company took over the management, he was of the view that all matters raised were dealt with. 96 Generally, after a work order is issued, contractors must provide before and after photographs before invoices are approved. 97 The building has only one lift. When the lift drive mechanism failed in late 2023, Mr Beamish arranged a repair costing approximately $30,000 - $35,000, authorised by the council of owners. The repair took about 4 - 6 weeks. 98 When Strata Property WA became the manager of the building, Mr Beamish decided to recommend locking the areas designated as gym and laundry. There was no designated gym or laundry shown on the strata plan or by-laws and in the gym equipment ownership was unclear, which was a concern because it meant the equipment was not being serviced which created safety concerns. The area said to be a laundry looked like it was just an area people used to do other things - there was evidence of drug use and there were clothes and rubbish everywhere. 99 Mr Beamish was taken through emails from Mr Kamil about graffiti, mould, pool issues, carpets, plumbing, pest control, camera failures, lift outages and door replacements. He accepted that he did not respond to every email. He said he was not obliged to respond to all communications and instead dealt with issues through the strata management process, that is, he escalated it to the council of owners. The email chains became Exhibits 240, 242, 246, 250, 257, 258, 260, 268, 281, 288, 305, 306, 323 and 326. He also asked Mr Kamil not to ring him on his personal mobile number but to follow the process set up for raising matters. On at least one occasion, in Exhibit 246, the chair of the council of owners had been copied into the email. He was not sure whether that was why he did not respond to -- 21 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 22 Mr Kamil. He dealt with the issues according to their priority, in the context of other issues the building was facing, and its cash flow. 100 In relation to complaints from Mr Kamil about graffiti, and despite the fact that he knew hotel businesses were being operated out of the building, he felt it was not his position to issue work orders to remove it. Mr Wheeler's reliability and credibility 101 I return to the questions asked of Mr Wheeler in examination-in-chief about his view of the upkeep of the building and his knowledge of items being raised with the council of owners. While it is the case that a collateral challenge to Mr Wheeler's credibility in relation to whether a work order had been raised was abandoned, it is still for me to determine a witness' reliability and credibility, what parts of their evidence I accept and do not accept and what weight I give to their evidence. 102 I have had regard to, in comparison, Mr Beamish's evidence of the state of the laundry and his evidence that any issues were escalated to the council of owners and his having to deal with at least graffiti, the evidence of the City of Perth orders and WorkSafe improvement notices orders issued on the building, the inability to gain insurance and Mr Wheeler's knowledge of them, the items raised at the 2021 AGM and that Mr Wheeler himself moved or seconded motions at the EGM in June 2022 in relation to a vast list of matters needing attention, when he was also on the council of owners at that time. It might be that he thought he was being asked in examination-in-chief to recall a specific item that needed repair, but it was more likely in the way the evidence progressed that he was generally saying he could not recall the council of owners being advised of any damage or disrepair to common property. In that context that answer cannot be accepted, and suggests he was attempting to distance himself, being a member of the council of owners, from any knowledge of items needing attention. This is compounded by his evidence that either under his cleaning contract or with the previous cleaner, things were 'good' and items were fixed or attended to as required. 103 He also, as Mr Kamil did, appeared to be of the view that although he had implemented a corporate structure, the companies under his control were really just an extension of him, not their own sperate entity. -- 22 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 23 104 All this causes me to exercise caution in accepting his evidence that he never saw Mr Kamil repairing items or attending to maintenance, or regarding the state of the property and the need for items to be attended to. Eddie Kamil 105 Mr Kamil gave evidence as the proprietor and later director of Perth City Apartment Hotel, operating from 875 Wellington Street. 106 He acquired his first apartment in 2013 and eventually accumulated about 30 lots, together with several others under management. He operated those lots as Perth City Apartment Hotel. The Wheeler interests controlled approximately the remainder of the 80 units through their own apartment-hotel business. All units were operated as short-stay accommodation businesses rather than private residences. 107 There was a third business operating from the premises, City Stay Apartments. However, that business collapsed in 2017, and subsequently the building declined. CAG bought the liquidated assets. City Stay Apartments owed the strata company a considerable amount of money. Mr Davis was the owner of the City Stay Apartments business and had employed dedicated cleaning and maintenance staff. He kept the premises to a high standard, however, following the collapse of City Stay Apartments, there was effectively no caretaker. Mr Kamil and his staff stepped into that vacuum and carried out cleaning and maintenance work necessary to keep the building functioning. 108 He claimed that from 2017 onwards he and his staff: • removed graffiti; • cleaned common areas; • steam-cleaned carpets; • removed rubbish; • repaired doors and locks; • attended to plumbing issues; • maintained CCTV systems; and -- 23 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 24 • addressed safety issues around the building. 109 Mr Kamil painted a picture of a building in chronic disrepair. Before Mr Beamish's company became the strata manager, he was in contact with the then strata manager, First Western Realty, every single day, maybe five times a day. Some of the invoices he issued in 2016, 2017, 2018 and 2019 were because of work he had done or money he had spent at the request of the strata manager. While he could not point to any in particular,32 an example in the tendered evidence was the Nifty Cleaning Team invoice, and the email of congratulations from the strata manager which are Exhibits 25 and 27, however, it is clear from that example that Mr Kamil was paid for some work he conducted to assist the strata company. That suggests, in my view, that the strata company and the strata manager were willing to pay him for work he performed or engaged in on their behalf. While that does show that he may have performed that work or engaged services, it also shows that they were willing to pay for the work that was done. 110 By October 2021 there were: • broken doors and locks; • damaged fire equipment including a lack of signage on fire exits and no evacuation information on the apartment doors; • rusted roof structures; • mould problems; • broken stairs and an absence of anti-slip material; • exposed nails on children's play equipment; • damaged brickwork; • trip hazards; • rubbish accumulation, such as tyres, rubbish and air-conditioners, fridges and washing machines, all of which remained for a long time; • broken downpipes; • asbestos-containing door panels; and 32 ts 260. -- 24 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 25 • needles and drug paraphernalia in common areas. 111 He said these problems persisted through the periods relevant to the proceeding and repeatedly required his intervention. He worked at the building 16 hours a day, seven days a week and the attention to these items interrupted his daily business. He also provided security in the building and whenever there was an issue people would call him, and he would try and sort it out. This affected his income because all he was trying to do was patch things up for the building. 112 Mr Kamil alerted CHU Underwriting Agencies Pty Ltd to building defects and the City of Perth and WorkSafe authorities to safety concerns. He did this because the building was rundown and he was worried about the risks that might occur under the insurance policy. To his knowledge CHU Underwriting Agencies Pty Ltd eventually declined to renew insurance because of the poor condition of the building, and WorkSafe inspections subsequently produced a series of improvement notices, with many of the defects identified by WorkSafe reflecting issues he had previously complained about. 113 By 2023 when he had contacted WorkSafe, there was brickwork missing, pot plants that were broken with sharp edges at the front of the building, downpipes that were sharp and edgy, fascia plasterboard hanging from four flights up, air-conditioners 'hanging', no lighting at night time in the driveway, asbestos in the fire stairs, rubbish scattered throughout the building, broken fire hydrants, broken hoses, broken bricks in the children's area, needles in the backyard which needed to be constantly removed, dangerous mould that was growing at the back of the building and the back fence was falling apart. 114 Because the common areas were not being cleaned, in 2021 Mr Kamil and his staff cleaned the staff common area kitchen and lounge and the residents' kitchen and toilets and their own reception area, which was in a common area. The strata manager at that time was often at the premises. In contrast, Mr Beamish visited rarely. He never came to see Mr Kamil. 115 Mr Kamil agreed that he could not say one way or the other whether the strata company had paid him according to the invoices he had issued, but he could say that 'most of them are not paid'. -- 25 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 26 He thought it would be the Nifty Cleaning Team invoice and some other minor ones that had been paid.33 116 He kept notes in diaries about what work he had done and how long it took, however, he agreed that the notes and diaries had not been provided to the court.34 117 He agreed he could have accessed bank statements to determine whether he had been paid or that he had paid contractors when engaged to do the work claimed for, even though he had changed banks. He agreed he had not provided such documents to the court.35 118 While he admitted he had not paid his strata fees, he had a genuine belief that if an owner was not paying their strata fees the council of owners had a legal duty to raise enough money from other owners who were paying to ensure the building was properly maintained.36 119 Mr Kamil said he installed CCTV cameras in common areas from approximately 2017. He paid for the installation and operation, maintained the cameras, and provided footage to police and strata managers and substantial internet and maintenance costs were incurred as a result.37 120 Mr Kamil maintained that he performed extensive work benefiting the common property, incurring both labour and third-party expenses and that the plaintiff should reimburse him. 121 Many claims arose because strata managers refused to accept responsibility for items which he believed were common property obligations. 122 A substantial part of Mr Kamil's evidence was cross-examination on the invoices he tendered to support his claims which went to the crux of the plaintiff's response to the defence and counterclaim. Accordingly, in the next sections I will summarise Mr Kamil's evidence and the plaintiff's contentions in relation to it. The invoices and claims for payment 33 ts 274. 34 ts 277. 35 ts 342. 36 ts 348 - ts 349. 37 ts 281. -- 26 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 27 123 Broadly, Mr Kamil claims for either work done on the common areas or money he has spent on the common areas. Before I set out his evidence in relation to the invoices and other documents he tendered, it is useful to summarise the plaintiff's case in relation to them. 124 The plaintiff says that where there is documentary evidence of payment to a third party or where the claim relates to work done by Mr Kamil or an employee or contractor engaged by him, each claim can be rejected for one or more of the following reasons: • the claim was not originally pleaded; • the claim is subject to the Limitation Act 2005 (WA) (Limitation Act); • the invoicing practices of Mr Kamil were so unreliable that they cannot be relied on to show that work was performed, the date on which it was performed or the cost of the work; • there is no evidence that the work performed was required because of a breach of the obligations of the plaintiff; • there is no evidence that it relates to an expense on common property; • if he is mitigating his losses, there is no evidence as to what losses came or may have come from the issue that was required to be addressed by him; • if the work was performed by an employee of his: • there is no evidence from the person who performed the work as to what work was done and why; and • there is no evidence of how the figure is calculated for work done, either calculated by the salary of the worker or their estimated hourly rate, or otherwise, or an invoice from the person who did the work, nor is there evidence of what Mr Kamil lost in having his employee or worker perform this work; • if the work was performed by Mr Kamil: • there is no evidence of how Mr Kamil came to the figure for his time and resources; and • there is no evidence of his loss as a result; -- 27 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 28 • having incorporated his business in June 2023, any claim for work done or money spent by his company after this date cannot be claimed by Mr Kamil personally, and the company is not a party to the action. 125 Further, where there is a claim for unjust enrichment because of a compulsion on Mr Kamil to perform the work or pay for someone to undertake it, there is no valuation of the work done, such that I could make a finding that the plaintiff has been unjustly enriched. 126 In addition to the issues with the invoices and claims themselves, the plaintiff points to the credibility and reliability of Mr Kamil as being in question. As a real estate agent, he was convicted of fraud and sentenced to a term of imprisonment. He forged his partner's name on the purchase of an apartment, and then on the transfer document. He agreed he signed her name eight times. He also applied for the first home buyers' grant in her name. 127 Specific attacks were made as to his evidence about the invoices which I will address as I summarise his evidence on them. The incorporation of the company and preparation of invoices 128 Mr Kamil agreed in evidence that from at the latest 27 August 2023 his business was operating under the company name. ASIC records show the company was registered on 28 June 2023.38 129 He said that that company was a management company; it did not own any of the units. Any accounts that needed to be paid came directly from Mr Kamil's account.39 130 The invoice that became Exhibit 248 showed the company name and the ABN (Australian Business Number) 80669221710, which he agreed was the ABN of the company. The bank account on that and other company invoices ends in 175. The bank account of Perth City Apartment Hotel before incorporation ended in 237. Mr Kamil is the sole director of the company. In his view, he funds the company, and any bills to be paid are paid by him and he pays the debts, even though the company submits tax returns and business activity statements in its name, not in his.40 Since incorporation, all guest bookings are with the company, the company pays any refunds, 38 Exhibit 339. 39 ts 358. 40 ts 238 - ts 239. -- 28 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 29 the company pays its own expenses and is entitled to all the revenue the business generates.41 131 Mr Kamil said Anthony Colley was a contractor to the company - he issued invoices to the company to be paid. Otherwise, contracts of employment were issued by the company of those who worked for it.42 132 Mr Kamil insisted that he and the company 'are one'.43 The invoices 133 Mr Kamil gave the following evidence at first about the creation of invoices:44 • He prepared them and dated them on or about the date he prepared them, which was on or about the date the work was done or the money was spent. • He has backdated invoices a few times because they did the work first and then a month would go past and they would create the invoice, that is how busy they were trying to maintain the building. • Sometimes they dated the invoice for the day they prepared it and sometimes they dated it the date they did the work. 134 When the invoices were created, they would be sent, so if they did the work today, and had time, then the invoice would be created, however, it may have been two weeks or three weeks down the track then the invoice would be sent. Accordingly, the date of the invoice did not really matter because the work was done.45 135 Mr Kamil's veracity on the above practice was challenged by the example of invoices in the name of the company, the first being Exhibit 197. That invoice is numbered 230734. It is headed 'Perth City Apartment Hotel Pty Ltd'. The ABN is 80669221710. The bank account ends in 175. It is dated 26 February 2023, and consistent with his general evidence, Mr Kamil at first agreed that he did the work on 41 ts 239 - ts 240. 42 ts 261 - ts 262. 43 ts 238. 44 ts 246. 45 ts 248 - ts 249. -- 29 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 30 or about that date, and prepared and sent the invoice to the strata company on or about that date.46 136 He was 100% sure he did the work and that he sent the invoice on or about 26 February 2023 - it related to mould in one of the rooms. 137 When it was pointed out to him that the company did not exist in February 2023 he said:47 I look at it as a - an invoice that, when we copy and paste, we might have put the wrong details. So whether it should have had a 'Pty Ltd' or not, that's just a mistake. It's an error, people make errors. 138 He did know, he asserted, in February 2023 that there would be a company named Perth City Apartment Hotel Pty Ltd Inc. When it was put to him that he would not have known at least the ABN, he said:48 Well, like I said before, accounting mistakes can be done, that's a - an error. … This is not a fraud, this is an error. 139 When asked to accept that this could not be a document prepared on or about 26 February 2023, he said that 'on or about' could mean a few months out, maybe four months either side, that is what he meant by 'on or about'.49 That meant, he agreed, that 'the date could be out by a few months, the preparation of that invoice'.50 He maintained, however, that the work was done. 140 Secondly, he was taken to the invoice that is Exhibit 232. This invoice appears to be for similar work to the same room, room 216, being a '2nd repair'. Again, the invoice was rendered in the company's name with the company's ABN, invoice number 230743 and dated 26 April 2023. Again, Mr Kamil explained that 'There's two months apart from the date of the creation', but that the invoice was created 'on or about' 26 April 2023.51 He then explained that he believed that he got the dates wrong by two months for the preparation of the invoice, but then explained, when pressed as to when he prepared the document, that he 'wouldn't remember', he had so many invoices, 46 ts 241. 47 ts 243. 48 ts 243 - ts 244. 49 ts 244. 50 ts 245. 51 ts 245. -- 30 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 31 and then agreed that the invoice must have been created after the creation of the company.52 141 Next was Exhibit 241, an invoice numbered 230700 dated 15 June 2023 (therefore while dated after the first two invoices, numbered with an earlier invoice number) in the name of the Perth City Apartment Hotel Pty Ltd with the ABN of the company. This is for the 'third' mould repair to the same apartment. He accepted that the date the invoice was created could not have been 15 June 2023. He agreed that the invoice did not show what date he sent it to the strata company.53 142 Conversely, Mr Kamil was then shown Exhibit 244, an invoice numbered 2302021, dated 20 August 2023. The invoice was issued by Perth City Apartment Hotel, and Mr Kamil confirmed that the ABN of 71632739927 was his personal ABN. The work claimed is 'Cleaning common area kitchen 1 time a week. $50 per week. Since 2021 - 2023. Mop clean benches, fridges, etc'. The bank account number ends in 237. Mr Kamil conceded that the invoice should have been on the 'Perth City Apartment Hotel according to ASICS' by which I infer he meant that it should have been on the company letterhead, given the date. He went on to explain 'So the date is irrelevant. … So there was a mistake, because we copy and paste …'.54 He agreed, though, that it was a document created on or about 20 August 2023, but not within a day or two of that date. He reiterated that they do the work and then move on and create the invoices after, depending on whether they were free to do the invoices, given they did a lot of work for the hotel, and it was not just about managing their business. If they got the date wrong, 'it doesn't really matter because the work is done'.55 143 Similarly, the invoice which became Exhibit 259 is dated 8 September 2023, but is in the name of the business, and has Mr Kamil's personal ABN on it. Mr Kamil said that, therefore, another mistake had been highlighted. He was asked about the work said to be done, which was to address the mechanism of the night entrance door. He said that he had had to fix it about 50 times. He also recalled doing it 20 times because it always sticks, but he could not recall exactly when he did it relevant to the invoice date.56 52 ts 247. 53 ts 248. 54 ts 249. 55 ts 249. 56 ts 254. -- 31 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 32 144 Mr Kamil believed that whether it was he or the company that did the work, it was the same thing.57 145 The plaintiff says that these are examples of Mr Kamil constructing invoices such that I cannot be satisfied that they are genuine and support his claims. The common claims for $11,440 146 Exhibit 148 is also an invoice for the cleaning of the staff kitchen, at $50 per week from 2017 - 2021. The date of the invoice is 20 April 2022. The amount claimed is $11,440. 147 Mr Kamil has also claimed $11,440 for the washing of the car park from 2017 - 2020. The invoice relating to that item is Exhibit 66, issued on 23 April 2020, numbered 23020, for $50 per week. 148 Mr Kamil has claimed $11,440 for 'Manage maintaining a pool equipment, water testing etc general. Liase [sic] with pool contractor (paul). Keep written reports, logbook. 2017 - 2022. Inner city did not know how to maintain pool'.58 There is no time or monetary value assigned to these tasks on the invoice, although the Scott Schedule contains a sum of $50 per week. The invoice was issued by Perth City Apartment Hotel on 23 May 2022 and is, like the invoice for the cleaning of the car park, numbered 23020. 149 Further, Mr Kamil submitted to support his defence and counterclaim two other invoices for $11,440 being for 'Camera investigation for guests common area. For broken in cars, other problems with guests. Fighting etc. stolen items etc. $400 hours of incidents 2017-2021', also on an invoice numbered 23020 dated 23 May 2022.59 150 Exhibit 229 is an invoice also numbered 23020 but dated 23 April 2023, on the letterhead Perth City Apartment Hotel ABN 71632739927. This invoice is for 'Repair and maintain back yard (children's play area) @50 per week, clear broken glass, needles, drugs. Always scared I might get sued. No one else did it, since 2017'. While not set out in the invoice, the Scott Schedule suggests that this claim is for 2017 - 2022. Again, the invoice is for the amount of $11,440. 57 ts 346. 58 Exhibit 159. 59 Exhibit 160. -- 32 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 33 151 It was put to Mr Kamil that he had made up the work and amounts. His explanation was:60 Firstly, they're all round about the 2017 to 2022. So they all look the same to me, same period. 152 He was taken back to the invoices and was shown that the invoices were for work in 2017 - 2020, 2017 - 2021 and 2017 - 2022 and one was open ended. It was pointed out to him that if they were all for different periods of time at $50 a week, they would all have come out at different amounts. He responded:61 If they were calculated differently, then I can't really explain why, but these are the works that were done. 153 He disagreed that the amounts of the invoices were made up and that they were not genuine.62 154 The plaintiff says that from these examples I cannot be satisfied that the work was done or money spent because: • The amounts must be made up given their different calculation periods; and • If they were genuine, it is inherently unlikely that Mr Kamil would have waited until 2023 to claim for work performed in 2017. 155 Mr Kamil says that pointing out that the figures charged are the same is too simplistic, because that is not the only detail in the invoices. Also noted are the description of the work done, work Mr Kamil testified was done, a rate has been ascribed to the activity, and the activity is expressed over a definitive period of time. Therefore, while it might appear that they are estimates, they are estimates with 'specific elements'63 in the context of Mr Kamil having an intimate and detailed knowledge of all that was occurring in relation to the building. The common invoice numbers 156 As can be seen from the examples above, there was a commonality in invoice numbers in some of the invoices. In fact, invoice number 23020 was the invoice number of the invoices in the following exhibits: 60 ts 335. 61 ts 336 62 ts 336 - ts 337. 63 ts 376. -- 33 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 34 • Exhibit 11 (dated 23 July 2017); • Exhibit 30 (dated 23 April 2019); • Exhibit 31 (dated 23 April 2019); • Exhibit 32 (dated 23 April 2019); • Exhibit 65 (dated 23 April 2020); • Exhibit 66 (dated 23 April 2020); • Exhibit 67 (dated 23 April 2020); • Exhibit 146 (dated 20 April 2022); • Exhibit 148 (dated 20 April 2022); • Exhibit 159 (dated 23 May 2022); • Exhibit 160 (dated 23 May 2022); • Exhibit 226 (dated 23 April 2023); • Exhibit 227 (dated 23 April 2023); • Exhibit 228 (dated 23 April 2023); • Exhibit 229 (dated 23 April 2023); • Exhibit 230 (dated 23 April 2023); • Exhibit 231 (dated 23 April 2023); • Exhibit 234 (dated 4 May 2023); • Exhibit 235 (dated 4 May 2023); • Exhibit 338 (dated 4 May 2023); • Exhibit 239 (dated 23 May 2023); and • Exhibit 247 (dated 24 August 2023). 157 The work claimed is different in each. 158 Further: -- 34 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 35 • Invoice number 2306 appears on invoices twice, over a year apart.64 • Invoice number 2302032 appears twice, over six years apart.65 • Invoice 2560 appears twice, over three years apart.66 • Invoice 2323248, issued by the company, appears five times, first67 issued almost two months before the other four, which were issued on the same day.68 • Invoice 287F4474 appears three times issued on the same day, twice for the removal of graffiti in October and once to replace carpet, each for different amounts without specified dates on each for that work.69 • Invoice 233222 appears twice issued on the same day for different items and different amounts,70 with another invoice issued on that day for other work bearing a different number.71 • Invoice 28774 appears twice, issued several weeks apart, each relating to mould, although with different descriptions and for different amounts.72 I note that Exhibit 292 incorporates work performed in relation to mould on room 216, the same room that the invoices contained in Exhibit 232 (February 2023), Exhibit 197 (April 2023) and Exhibit 241 (June 2023) claim for mould treatment. 159 Mr Kamil said that invoice numbers were generated manually. He agreed that it was something like starting at one and they chose the numbers. They chose the numbers to correlate with the invoice. 160 He was asked to explain, and his evidence was:73 So -… so what we've got is prior to - because now we use 0, prior to that we just have a list of the invoices on the word processor, and then 64 Exhibits 3 and 9. 65 Exhibits 261 and 262. 66 Exhibits 189 and 195. 67 Exhibit 243. 68 Exhibits 277, 278, 279 and 280. 69 Exhibits 283, 284 and 285. 70 Exhibits 288 and 290. Another invoice, 289/291, issued on that day for other work bears a different invoice number. 71 Exhibit 289 (which appears to be duplicated in exhibit 291). 72 Exhibits 292 and 310. 73 ts 288 - ts 289. -- 35 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 36 when we highlight a new one, then it should come up with a different number that we can enter in there. So this is obviously an error as I highlighted it. So the word processor has a mechanism in it whereby it can generate a number for you?---No. So we'd look at the invoices. Look at the invoices where?---On the generated invoices, and then we would choose the next number- - - … as I said yesterday, we'd copy and paste the frame of the invoice and then we insert the information. And when you insert the number, how do you choose the number to be included?---One that hasn't been chosen. You - you accept this, don't you, Ms Kamil [sic], the function of including a number on an invoice is to aid in its identification?--- Yes, of course. But so when somebody pays it, they can tell you what invoice number it is and you can check off that that one has been paid?---Correct. If someone wants to discuss it with you, they can tell you the invoice number and you can find what they want to talk to you about?--- Correct. And so you - you can check your own records when you're seeing what hasn't been paid and what you need to follow up on?---Yes. That's - that's the function of numbering?---Correct. And the way I understand correctly that when you - you have some means that when you copy and paste the template to create a new invoice, you have some list available of the numbers of all previous invoices so you can select one that hasn't been selected before?--- Correct. Is - is that simply done by then including a number which is the next in sequence?---Roughly, yeah. 161 He was then asked, if that was the case, where the invoice number 287F447474 came from. He said that that was confusing him, but he thought it was probably a clerical error. He confirmed that he prepared all the invoices. 162 However, his evidence continued:75 74 Exhibits 283, 284 and 285. 75 ts 292 - ts 293. -- 36 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 37 Earlier invoices should have lower numbers, and later invoices should have higher numbers?---Well, no, I didn't do them like that. I just chose numbers that weren't in the pile before. So barring - so your answer is this - is this correct, Mr Kamil. Your evidence is you chose the number of each invoice at random, checking only that your random number hadn't been the number of a prior invoice?---Correct. How did you do that check?---As I said before, I looked through the system of invoices and looked at the numbers. 163 To do this he would use the word processing app to search for a number he wanted to use. In other words, he made up a number and then searched prior invoices to see if it had been already used. He did this to ensure there was no duplication.76 Dates and descriptions on invoices 164 Mr Kamil was taken to Exhibit 284, which is dated 1 October 2023, but is described as 'Clean/paint graffit [sic] throughout the building. october' in the amount of $1,100. He agreed that if it was for work done in October, it could not have been prepared on 1 October, given he prepared invoices once work was done. He explained that it was 'a clerical error on the dates which is not an issue for me'.77 165 He was then taken to Exhibit 283, which is dated 1 October 2023, with the work also described as 'Clean/paint graffit [sic] throughout the building. october' in the amount of $1,200. As I have described above, each of the invoices bears the same invoice number. Mr Kamil's explanation was that this difference in amount was also a clerical error, and he could not recall what month the latter invoice was issued for.78 He had used duplicates because sometimes you make mistakes; the relevance of the invoice is what is in the description, not the number. Duplicates were clerical errors.79 166 He then explained:80 … like I said, I sit in the front reception. I don't have an office, so I'm continually being interrupted by guests wanting something, whatever, so in the midst of all that, I'm trying to create documents, invoice people, organise repairs, call plumbers. You can understand it's 76 ts 293. 77 ts 287 - ts 288. 78 ts 288. 79 ts 294, ts 296. 80 ts 296. -- 37 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 38 a hotel lobby that I sit in. I don't sit like in the back section in a private office and do the accounting. I don't have that luxury. I'm a simple - it's a simple business. I do everything. In a normal hotel, the guy before me had a - an accountant - - - 167 He further explained that the numbers he used were just general numbers which did not mean anything unless you were going to relate to them. 168 As to the chance that the use of duplicate numbers was a cutting and pasting error, or using a template, he was shown Exhibit 189, which shows a 4-digit invoice number on the right-hand side of the page with the business name, not the company name. His explanation was that when the company was used, the formatting 'flipped', that is, when they pressed enter, that created an indentation.81 However, Exhibit 166, also in the name of the business, not the company, has the invoice number on the left. Mr Kamil explained that there must have been indents in the formatting that created that anomaly.82 He was taken to other invoices where there were similar clerical errors. 169 He agreed that in selecting a prior invoice to copy as a template, he would normally pick the last invoice completed, although sometimes he also scrolled through the folder to find another previous invoice, particularly if the work he was invoicing for was of the same type, so he could copy the description.83 Rounded figures and general claims in invoices or without invoices 170 Many of the claims by Mr Kamil are general in nature, cover a large amount of time and have rounded figures for particular items. Some examples follow. 171 One of Mr Kamil's claims is for the cost of CCTV cameras which he installed. The Scott Schedule records that he claims he spent $13,200 from 2017 - 2021 including uploads, repairs and maintenance. 172 There is also a claim for $13,20084 as a proportionate internet cost to run the cameras during the period 2017 - 2022. Mr Kamil could not recall whether he had sent an invoice to the strata company for the latter 81 ts 296 - ts 297. 82 ts 297 - ts 298. 83 ts 300. 84 The original claim was for $18,000, however, this figure was amended during the trial, and Mr Kamil was questioned about the $18,000 figure, however, in my view the questions have equal relevance to the final figure of $13,200. -- 38 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 39 amount, however, he thought he may have. He explained that he gave a rounded figure because 'you round off figures'.85 The proportion of the total bill was 'one third, one quarter, around about'. It was not something that he could remember in so many pages, he would have to sit down and look at his calculation again. At the allegation that he had made this up, he said that there was a precise calculation, that is how it came to that figure.86 173 There are multiple invoices which claim such costs. For example: • Exhibit 5: For the installation of the cameras, $10,000 and for the internet, $650. There is no date on the work, however the invoice is issued in 2017. • Exhibit 230: Again, numbered 23020, dated 23 April 2023 is for 'Camera CCT monthly internet costs @ 250 per month. 2017 - 2021' being a claim for $13,200. • Exhibit 235: $7,200 for 'Camera monthly running costs, uploads/maintain repairs, batteries. 2 installed in 2017 to current. $150 per month. 4 years. Until strata installed cameras in January 2021'. There is also a claim for cameras stolen in 2019 for $400. The total claimed is $9,152 and the invoice issued on 4 May 2023 is one of the many numbered 23020. 174 There is no other documentation which supports any such claims. 175 A claim for $9,500 for broken windows is contained in the pleadings and Scott Schedule, however, there is no supporting documentation. Mr Kamil explained that there are broken doors nearly every day and broken windows at least once or twice a week, including the common areas. The claim is for 27 August 2016 - 2020. He said that each window cost about $650. There are two documents from Prompt Glass, being Exhibits 6 and 7. Each document is identical but for the insertion of '210' in the description of the job and some hand added highlighting in Exhibit 7. The total cost of items and labour is $686. They are dated 13 February 2017. It does therefore appear to be the case that a window may have cost about $650 in 2017. 176 Mr Kamil said that the round figure in the claim comes from an aggregate of individual items costing $650. On being told that $9,500 85 ts 307. 86 ts 308. -- 39 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 40 divided by 650 is 14.6, he said that some windows are slightly larger, depending on the area of the building. He was accused of making that up and he denied it. He said he knows every inch of the building and that some windows were slightly bigger, the window frames are smaller, and they are not built to standard. He agreed that he had probably not prepared an invoice relating to this item.87 177 Similarly to the dates for the windows, Mr Kamil has also claimed for the replacement of fire doors from 27 August 2016 - 2020 in the sum of $20,000. When asked if he started replacing the windows and doors on the same day, in relation to the doors, he said that it might have been even earlier, however, that was the date 'we' put down for the purposes of the claim.88 There is no documentary evidence to support this claim. 178 He has also claimed for the repair of apartment doors from the same date $8,000, and for the repair and replacement of flyscreens on apartment windows $9,000 from 27 August 2016 - 2019. 179 He could not refer to invoices when being asked about these items because there were so many documents in the trial.89 No invoices or other supporting documentation was tendered in relation to these items. While there were emails referred to about such items, they all post-dated 2019. 180 Mr Kamil was shown Exhibit 11, being invoice 23020 dated 23 July 2017. The items listed were performed by contractors organised by his staff. Five of the items are charged in round numbers. His explanation for that was that his manager Mr Colley would have organised it and therefore added his management cost to the cost.90 181 This invoice also claims $2,000 for 'Cockroach prevention common areas monthly 4 years' worth' despite Mr Kamil's evidence that he only took over pest control once Mr Davis left in 2017.91 He thought the date might be wrong on the invoice, and, in any event, towards the end of Mr Davis being at the property there were cracks showing and there was no money spent towards the end. He thought he might have been conducting pest control measures from 2016. Whether the invoice date was incorrect, or the date on the item was 87 ts 311 - ts 312. 88 ts 312. 89 ts 313. 90 ts 323. 91 ts 322. -- 40 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 41 incorrect, he could not recall. The amount was rounded off because they do not bother with cents.92 182 Mr Kamil claims for 'approximately $2,000' for 'Computer Connections' in the 2022 action. His evidence was that this related to electrical cabling setting up his desk, after the council of owners had first given him a desk and then removed it from him. He agreed that he had not been asked to move until after September 2019, and therefore the claimed date in the pleadings of 2018 could not be correct. He agreed that it must have been when he was first setting up his desk.93 The plaintiff says that the reference to 'approximately' is telling in itself. 183 In relation to claims where a third-party invoice has been paid, there is still a doubt, the plaintiff says, about the purpose of the spending. As an example, Mr Kamil claims for expenses he incurred with locksmiths, supported by a set of documents which became Exhibit 238. There are issues with this exhibit: • The document relied on is an email from a person from RAM Locksmiths confirming work done, but says that work was done by Harry Armstrong Locksmiths. • The approximate price for work done was given only, which was $21,000. • There is no date the work was performed. • The description of the work is 'Locksmith Services, Restricted Keying System, Door Locks & Door Closers'. There is no other evidence of what this work was and to where it was completed. • None of this was explained by Mr Kamil in evidence, nor were more accurate records provided. Delays in asserting his right to payment 184 One of Mr Kamil's claims relates to work done to repair doors in 2016. Mr Kamil was of the view that it was the strata company's responsibility to fix doors within the complex that attached to the rooms and when he had six doors repaired he sent the invoice to strata 92 ts 326 - ts 327. 93 ts 309 - ts 310. -- 41 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 42 management. They refused to pay. He issued the invoice which became Exhibit 3, in 2016, after the doors were repaired. He agreed that 2016 was when Mr Davis took care of the building and everything was 'beautiful'.94 When he was asked why he had to repair the doors he said that First Western Realty believed that repairs to the doors had to be paid for by individual owners, however, Mr Beamish thought differently now.95 He did not accept what First Western Realty told him and issued an invoice. He agreed that he had not pressed for payment of that invoice until the institution of the legal proceedings against him, saying that it was his legal right to do so. He was waiting for the right time to press the issue.96 185 Neither had he pressed for payment of an invoice issued in 2017 for plumbing works, because he said, as Mr Beamish said, he ignored his emails. When it was pointed out to him that Mr Beamish was not the strata manager until 2022, he said 'Correct. And the same thing continued'.97 This appears contrary to the email Mr Kamil referred to from First Western Realty congratulating and thanking him for some cleaning work he organised - they appeared happy to have him perform work and paid him for it. However, he clarified that even First Western Realty had different views on what repairs were required to be affected by the owners. He was not prepared to take someone to court for an insignificant amount of money and he knew that the opportunity would come one day and these proceedings are that opportunity.98 He agreed that he had not created invoices on some items until the litigation commenced because he 'thought it's a good opportunity to show the courts that I maintained and repaired a lot of things'.99 186 Mr Kamil was shown Exhibit 146 which is an invoice for plumbing work on common property from 2017 - 2020. There are no particulars about what that work was or when it was performed. There is no method of calculation of the final amount, which is a round figure. He agreed that invoice was the only time he had invoiced for the work, which was because the strata manager always refused to pay for plumbing.100 The invoice is dated 20 April 2022. He did not issue an invoice until then because he was busy, and he knew the strata 94 ts 304. 95 ts 305. 96 ts 305. 97 ts 265. 98 ts 267. 99 ts 312. 100 ts 277 - ts 278. -- 42 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 43 manager would say no, as they had done repeatedly; it was pointless to issue an invoice. It was a round figure because he 'rounded off'.101 187 Mr Kamil was asked about his claim for cameras and associated costs. He said that he erected cameras for use on the common property. When police attended, which was often, he gave them reports of incidents by what was viewed on the CCTV, and he gave footage to the strata company. He said that because of the Wheelers' 'non-existence' at the property, even now he provides information to police, despite the Wheelers having CCTV cameras on the property as well.102 188 He said that while he prepared the Exhibit 230 in April 2023, he installed the cameras in 2017. He could recall exactly the time they got the cameras because it was a significant infrastructure installation. He had asked the strata manager to pay for the cameras, but they did not offer to pay. Despite being sued in 2022 by the plaintiff, he did not produce an invoice until 2023. However, the date of the invoice was irrelevant to him.103 I note that there are four invoices relating to the installation of cameras: • Exhibit 5 dated 23 January 2017 is for $10,000 for the installation of common area cameras, including cameras, routers, wiring and connection. • Exhibit 230 dated 23 April 2023 for $12,000 for 'Camera CCT monthly internet costs @250 per month. 2017 - 2021'. • Exhibit 231 dated 23 April 2023 for $18,720 for 'Provide CCT to police for common areas. time of staff since 2017 - 2021 hours per week @ 30 per hour'. • Exhibit 235 dated 4 May 2023 for $7,200 for 'Camera monthly running costs, uploads/maintain repairs, batteries. 2 installed in 2017 to current. $150 per month. 4 years. Until strata installed cameras in January 2021'. 189 Similarly, an invoice for $6,600 for plumbing from 2017 - 2020 to 'common areas', being Exhibit 146, was issued, but according to Mr Kamil the strata company refused to pay.104 He did not issue invoices as the work occurred because the strata manager had refused to 101 ts 279 - ts 280. 102 ts 230 - ts 231. 103 ts 281 - ts 283. 104 ts 278. -- 43 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 44 pay.105 Invoices from Sevenstar Plumbing and Gas, being Exhibits 49, 52, 53 and 58, were tendered, amounting to $2,079 for work done between September and November 2019. In someone's opinion, the work was to common areas, however I am not prepared to accept a notation on an invoice from a person who has not been called and has no apparent expertise on what the common area might be in that building or on stratas generally. Invoices and payments for third parties 190 Exhibit 25 is an invoice from Nifty Cleaning Team. There is also a remittance advice from the strata manager reimbursing Mr Kamil as the proprietor of the Perth City Apartment Hotel business for paying them. Part of Exhibit 25 is a remittance advice for $990 from First Western Realty for 'Commercial kitchen deep clean' addressed to Anthony 'Coll', who, it is inferred, is Mr Colley who worked for Mr Kamil, dated 8 March 2019. This matches the invoice from Nifty Cleaning Team dated 2 March 2019 for the same amount. Therefore, some money was paid to Mr Kamil for the cleaning of the kitchen within the time claimed, suggesting that when he rendered invoices, they were dealt with. 191 Exhibit 148 is an invoice for 'Cleaning common area kitchen for staff 1 time a week. $50 per week. Since 2017 - 2021. Mop clean benches, fridges, etc'. The date of the invoice is 20 April 2022. The amount claimed is $11,440. Exhibit 244 is an invoice with the same description, but the dates being 'Since 2021- 2023'. It is for $8,580. The date of the invoice is 20 August 2023 and is on the Perth City Apartment Hotel letterhead, not the company letterhead. I have already set out Mr Kamil's explanation for that anomaly. 192 The amount claimed by Mr Kamil in his pleadings in relation to the 2022 action against him is for '$50 per hour, 1 time per day, 7 days' for 2017 to December 2020, amounting to $11,440. That is not what is reflected in the invoice, nor in the calculation of the charged amount. 193 Exhibit 236 records a payment to Daryl Quartermaine of $308. While that payment is no longer part of Mr Kamil's claim, having abandoned it, his evidence about it is useful in assessing his reliability and credibility. The payment receipt records that the money was paid to Mr Quartermaine for 'Door 211 install dryer tv brackets curtain'. 105 ts 279. -- 44 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 45 194 When it was put to Mr Kamil that that suggested a payment for internal works to apartment 211, Mr Kamil said:106 It looks like it, but he doesn't do TV brackets and curtains. So I don't know how I did that, but he does doors. … 195 Mr Kamil accepted that he would have no reason to be inaccurate when entering payment advice in a bank payment, however, he also agreed that the work described was not on common property. He maintained, however, that on that occasion Mr Quartermaine had installed a door to apartment 319. He thought that the entry must have been a clerical error. 196 He also agreed that he had the capacity in 2023, when the receipt appears to have been retrieved, to access his bank records to find such material and proof of payment. Summary of Mr Kamil's evidence 197 Mr Kamil accepted that invoice dates did not necessarily indicate when the work was done or when the invoice was prepared. 198 Many invoices carried identical numbers, numbering systems were inconsistent and clerical errors frequently occurred. Mr Kamil attributed this to manual preparation of the invoices, copy and paste methods, operating from a busy hotel reception desk and knowing that the strata manager was not going to accept them anyway and therefore not preparing them in a timely manner, or until the plaintiff had commenced court action against him. 199 He accepted some figures were rounded, estimated or based on recollection rather than contemporaneous calculation. While when work was carried out, he often kept notes, used diaries and took before and after photographs, he accepted that his original notes were not in evidence and much of his proof consisted of invoices, emails and recollection. There was no certain evidence about whether anything had been paid. 200 While he accepted many administrative errors, he maintained that the underlying work was genuinely performed on common areas, the plaintiff had received the benefit of that work and the work was necessary because neither the council of owners nor the strata management company were doing their jobs in maintaining the 106 ts 338. -- 45 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 46 property or addressing the need for repairs and reimbursement remained owing. 201 While I have some doubts about the veracity of Mr Wheeler's evidence, bearing in mind his self-interest in the evidence he gave over and above the debt owed to the council of owners, neither am I satisfied of the reliability of Mr Kamil. His answers to challenges on the state of the building, the reliability of the invoices and the work he says he has done, or the expenses he has incurred, were vague, broad, without particularity, and in relation to the invoices and the work he said he had done and expenses incurred, inconsistent within itself and entirely inconsistent with even the most basic of good business knowledge and practice. 202 I have doubts about his credibility, but, in my view, I do not have to make a finding about his credibility, either generally or per invoice or claim, to make findings in this matter. 203 Much of what is claimed by him is a broad reconstruction from general recollections of what he and his staff might have done and why. There is a significant lack of particularisation on what work, if any, was performed on common areas compared to his apartments, and the underlying causes. Much of the evidence relied on was most likely prepared well after any work might have been done or expenses incurred. All of this was in the context of what appears to be a difficult relationship between the council of owners, the strata managers and Mr Kamil, and the institution of actions against him for the funds he admits he has not paid. 204 More particularly: 1. The method of attributing invoice numbers was ad hoc and repetitive. 2. The amounts claimed in some comparative invoices are the same but could not possibly be given the time claimed. 3. There is no reliable time attributed to the work done in the invoices. 4. The dates in the invoices do not necessarily align with when the work may have been done. -- 46 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 47 5. While there might be some specificity in the estimates, the amounts are still just estimates, suggesting no reliable way of determining what work was done when. 6. The claim of 'copy and paste' errors must be rejected because there are just too many, and the errors are not all explicable by a mere copying of prior invoices - there are still some differences within the invoices and in the 'template' used. 7. Some amounts claimed in separate invoices appear to be for the same times and items. 8. The evidence that some of the invoices are in round figures because he rounded up or down cannot be accepted - they are too round, and too regular, and even if they are rounded, in my view they represent guesses and estimates of what may have been incurred rather than truly reflecting the work actually done, if any. 9. There is no reliable evidence that any of the invoices were sent, given Mr Kamil's evidence that he did not send some because he thought it would be futile. On that basis, while it is the case that the plaintiff has not produced records to show one way or another that any payments have been made, even on Mr Kamil's evidence, it may not be expected that they were. 10. A payment advice also contained 'copy and paste' errors which Mr Kamil now says were clerical errors and should not have referred to non-common property work. 11. Some of the 'invoices' or methods of claim are quotes without invoices or evidence of payment or work done. 12. The company being registered in August 2023, some invoices prior to that date bear the company name, and in my view the strong inference being that the invoices were not raised at any time close to the dates on them, are another example of the ad hoc manner in which Mr Kamil has prepared the invoices. 13. Mr Kamil gave non-responsive answers when pressed about some of the errors. 14. Mr Kamil's protestations that Mr Beamish had not responded to his emails, suggesting he just had to go ahead and do the repairs that had been complained of cannot be accepted given Exhibits 340 - 345, nor his protestations that Mr Beamish was -- 47 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 48 dismissive and unreasonable when he said not to call his mobile given other exhibits and Mr Beamish's explanation of his reasons. 15. Many of the descriptions in the invoices do not give any real indication of where in the building the work took place other than entries such as 'common area'. There are descriptions of plumbing and repairs to items such as windows and doors, for example, but no evidence about where in the property those repairs were required relevant to what was considered common property. The descriptions given by Mr Kamil about what he did, and why, especially items such as the plumbing, were not accompanied by any reference to how that plumbing exists within the building, the issues with it and causes such that it needed fixing and was part of the common property. 16. Mr Kamil did not produce the notes, photos or diary entries he said he kept. 17. He waited years before issuing some invoices for work done. I accept that he was busy, but I agree with the plaintiff that it is inherently unlikely that a business operator would wait years to issue invoices, whether or not he thought the strata manager was interested. Further, while he is not precluded from issuing invoices because litigation has commenced, nor because he now wants to substantiate his claims in that litigation, there is an inference available that he has done so simply as an attempt to surmount the amount the plaintiff says he owes, rather than an attempt at an accurate reflection of any work done or costs incurred. 205 While there is correspondence about the council of owners, it seems Mr Kamil has taken it upon himself largely to attend to matters he saw as important, but has not kept adequate, or any, records of the precise work done nor his specific costs of the causes of the need for the maintenance and repairs 206 I will say more about the effect of these findings when I come to assess his claims for the work done, refunds made and expenses incurred. -- 48 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 49 Should I have heard from the 'strata company'? 207 Mr Kamil submits that I have not heard from someone specifically representing the council of owners in relation to its view of his claims.107 208 It is the case that Mr Wheeler gave evidence of his knowledge of matters as a lot owner, business operator and contractor at the building. However, Mr Kamil's counsel asked many questions of Mr Wheeler about his knowledge of what occurred in his position on the council of owners, such as, for example, the question of the failure to have the insurance renewed, which is a council of owners' issue. I am satisfied, from the evidence as it unfolded, that Mr Wheeler represented and was cross-examined about the business of the council of owners at the relevant times, and that he was a member of the council of owners from time to time and is currently. 209 It was the case that Mr Wheeler also gave evidence about his own actions and the actions of his own business and companies. 210 In any event, there was no challenge to the position that the council of owners properly approved the commencement of proceedings, and Mr Kamil admitted to not paying the fees as alleged. The majority of my findings require an assessment of the duties under the Act and whether they have been complied with, and I must make that finding on what I have before me. 211 Mr Kamil suggests Mr Wheeler's evidence must be viewed in the context of his self-interest, by which I assume he is referring to the fact that he has had the cleaning contract and a competing hotel business. I agree and it is something that I have had regard to; that each of the witnesses who gave evidence on behalf of the plaintiff has their own interest in addition to that of the council of owners, particularly Mr Wheeler, and that, as Mr Kamil says, I have not heard from someone independent of those self-interests about the council of owners' attitudes to the claims, or to the initial claims for work done, expenses incurred and refunds given. Consideration 212 While Mr Kamil has sought to positively defend the suits and counterclaim, both responses rely on the same grounds and particulars, 107 ts 371. -- 49 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 50 so I will consider both the defences to each suit and the counterclaims together. The plaintiff raised an issue of some of Mr Kamil's claim being time-barred, which I will address first. Is Mr Kamil time-barred from making a claim for money paid and work done prior to 25 July 2019? 213 Mr Kamil made his counterclaim in response to the two actions commenced against him at the same time as his defence. The writ of summons in the 2022 action was filed on 25 August 2022. The writ of summons in the 2023 action was filed on 17 July 2023. Accordingly, those are the dates Mr Kamil became a party to the actions. 214 On 25 July 2025, amendments were made to his defence and counterclaim (the newly pleaded claims), some of which related to work done and expenses claimed as early as 2017. In my consideration to grant leave to amend, I determined that the amendments added new material facts and acknowledged that they effectively raised new alleged breaches by the plaintiff, albeit they were breaches of the same type of obligations originally pleaded.108 215 As a result of the amendments to the counterclaim and defence, the plaintiff was granted leave to plead a limitation defence on the newly pleaded claims. 216 The plaintiff pleads pursuant to s 13(1) of the Limitation Act that Mr Kamil is statute barred from relying on any newly pleaded claims incurred prior to 25 July 2019, six years prior to the amendments on both actions of his defence and counterclaim. That is, he is only legally entitled to claim a new cause of action, so for work done or money paid, within six years prior to 25 July 2025, when those new claims were pleaded. 217 Under s 13 of the Limitation Act, an action on any cause of action cannot be commenced if six years have elapsed since the cause of action accrued.109 218 Section 81 of the Limitation Act specifically deals with counterclaims and provides that while a counterclaim is a separate action,110 where a defendant makes a counterclaim that counterclaim is 108 ts 40 - ts 42. 109 Mr Kamil's counterclaim does not come within one of the exceptions provided in the Limitation Act. 110 Section 81(1) Limitation Act. -- 50 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 51 taken to have commenced when the defendant became a party to the action.111 219 The term 'cause of action' is, in general, used to describe a factual situation, the existence of which entitles one person to obtain from a court a remedy against another person. A new cause of action may arise in a matter which has already been commenced when wholly new facts are pleaded or there is a change in the legal categorisation of the basis for liability.112 220 In written submission filed by the parties on the question of the application of the Limitation Act in these proceedings, they both appear to agree that the amendments to Mr Kamil's defence and counterclaim create new causes of action. 221 Their point of difference is that Mr Kamil says that as he was a party to proceedings in August 2022 and July 2023, having made a counterclaim already, he was entitled to amend his counterclaim without the plaintiff's argued effect, as the amendment was made to a counterclaim already made. That is, s 81 provides that when new causes are added to an existing counterclaim, the time limitation nevertheless remains as the date on which he became a party, and the time limitation is therefore six years prior to that date, not any later date. The consequence, he says, is that he is entitled to claim for expenses or work done that occurred within the previous six years of when he became a party to the proceedings. He may therefore claim for work from August 2016. 222 The plaintiff argues that that is not the effect of s 81. 223 Mr Kamil relies on Commonwealth Bank of Australia v Dinh [No 2],113 in which her Honour Justice Archer made clear that s 81 of the Limitation Act is the relevant law in Western Australia, and the relevant commencement date of the counterclaim in that case was the date on which Ms Dinh became a party to the action, not the date on which she amended her pleadings to raise new causes of action in counterclaim, more than six years after the facts arose which grounded her cause of action in the counterclaim. 224 The plaintiff says that Dinh is not helpful in the present case. It appears from the judgement that Ms Dinh only raised a counterclaim 111 Section 81(2) Limitation Act. 112 Morgan v Banning (1999) 20 WAR 474, 476 and 478. 113 Commonwealth Bank of Australia v Dinh [No 2] [2019] WASC 456 (Dinh). -- 51 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 52 when she applied to amend her pleadings and not as an original part of her response to the action against her. If that is the case, then the facts of this case differ to those in Dinh, and that case does not then address the question of whether, where a counterclaim has already been pleaded, that counterclaim may be amended to rely on newly raised facts or claims in law which arose over six years prior to the date of amendment. 225 The plaintiff points to the language of the statute and the harmony it seeks to provide between a plaintiff's rights in relation to a cause of action and a defendant's rights in relation to a cause of action; that is, where a plaintiff cannot commence an action, generally, six years from the date on which the action accrued, neither should a defendant be able to claim a cause of action six years after its cause of action accrued, other than the allowance made in s 81 that a defendant's time runs from the date it became a party to proceedings to lodge a counterclaim. 226 The plaintiff points to the reason for s 81(1) and provides an example. It may be that an action is commenced within six years of an incident against a defendant, but by the time the action is served, it is beyond those six years. Section 13 and s 81(1) of the Limitation Act would preclude a defendant from raising a counterclaim in its defence, because the incident from which the defendant's cause of action arose was more than six years prior to when the defendant would lodge a counterclaim. That is not fair on a defendant. Section 81(2) remediates that unfairness. 227 The plaintiff argues that while that may suggest that Mr Kamil's amendments relied on causes of action which effectively accrued within time, being within six years prior to him becoming a party to the action, the legislation does not make the same concession for new causes of action added to an already existing counterclaim. That is so by the use of the term 'make' in s 81(2). A defendant, it says, only 'makes' a counterclaim once - that is the original filing of a document responding to the action against it which includes the separate action of a counterclaim, just as a plaintiff only makes a claim against a defendant once, albeit pleadings may later be amended to clarify or particularise a claim, or when a new claim is added within time, being time since its accrual, not time since the commencement of the original action.114 228 The consequence of the plaintiff's argument is that by raising new causes of action on 25 July 2025, those new causes of action do not 114 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341. -- 52 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 53 have the benefit of being 'related back' to the commencement of the plaintiff's action. The concept of 'relating back' does not apply in Western Australia.115 Accordingly, any cause of action raised in those amendments which relates to work performed or expenses incurred over six years before the amendment is statute barred. 229 I have had regard to the language of the Limitation Act and its purpose as described by the plaintiff, with which I agree. The question of whether Ms Dinh's counterclaim was being amended, and whether that would make a difference to the legal outcome, was not raised in Dinh, and accordingly I have undertaken my own consideration of the Limitation Act as it relates to the facts in the present case. 230 I agree with the plaintiff's argued application, and limitation, of the Limitation Act in this case. Raising new causes of action which claim for work done or expenses incurred in a counterclaim already on foot, Mr Kamil was time-barred from bringing an action as it relates to work done or expenses incurred prior to 25 July 2019. 231 In any event, as I have explained elsewhere, whether statute-barred or not, I have rejected Mr Kamil's claims for work done or expenses incurred in the particulars as they relate to the newly claimed facts on 25 July 2025. 232 I turn now to address Mr Kamil's claim that the levies were issued without power. The functions and obligations of a strata title company 233 To determine both the claim for the levies and the counterclaim it is necessary to review the legal obligations of a strata company. In determining the meaning and application of the relevant sections of the Act, the primary object is to interpret each provision in a manner that is consistent with the language and purpose of all provisions of the statue. In Glasby and The Owners of 84 Clydesdale Street Como Strata Plan 9012,116 Dr McGivern, as a member of the SAT, set out the considerations identified as promoting that objective,117 and I adopt those in this matter. 234 A strata company is a creature of statute, deriving its existence, functions and powers from its governing statute. It is subject to that 115 Commonwealth Bank of Australia v Dinh [No 2] [2019] WASC 456 [711]. 116 Glasby and The Owners of 84 Clydesdale Street Como Strata Plan 9012 [2021] WASAT 136. 117 Glasby and The Owners of 84 Clydesdale Street Como Strata Plan 9012 [2021] WASAT 136 [28]. -- 53 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 54 statute's terms. The functions of a strata company are set out in pt 8, div 1 of the Act. Those functions include: (a) a 'general duty' to control and manage the common property for the benefit of all the owners of lots, and to keep the common property and any personal property owned by the strata company in good and serviceable repair (with the power also to improve and alter the common property);118 (b) to ensure that insurance is in place in respect of all insurable assets of the scheme and in respect of any damage to property, death, bodily injury or illness for which the strata company could become liable in damages;119 (c) to undertake the 'financial management' of the scheme;120 and (d) to represent the owners of the lots in proceedings taken by or against them jointly.121 235 Resolutions are the mechanism by which certain decisions are made in the exercise of the strata company's duties and powers. They are not self-standing sources of power. Resolutions must be passed in the performance of its financial management functions. General obligations 236 The purpose of the Act as it relates to strata companies is for the governance and operation of the strata scheme. 237 Generally, in performing its functions, a strata company must have as its objective implementing processes and achieving outcomes that are not unfairly prejudicial to or discriminatory against a person or are oppressive or unreasonable.122 238 Pursuant to s 10(1) of the Act, common property in a strata titles scheme is: (a) that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme; and (b) temporary common property. 118 Section 91 of the Act. 119 Part 8, div 1, sub-div 2 of the Act. 120 Part 8, div 1, sub-div 3 of the Act. 121 Part 8, div 1, sub-div 4 of the Act. 122 Section 119(1) of the Act. -- 54 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 55 239 There are some exceptions and extensions in s 10(3) and s 10(4) which are not relevant to this matter. The strata company's general duties towards common property include fittings, fixtures and lifts used in connection with the common property123 and any personal property owned by the strata company.124 Financial obligations 240 This strata company had specific duties in relation to financial management. Administrative fund - Section 100(1) of the Strata Titles Act 1985 (WA) 241 An administrative fund must be established by the company. The purpose of the fund is to cover 'administrative expenses' for the: • control and management of common property; • payment of premiums for insurance; and • discharge of any other obligations. 242 The company must determine the amounts to be raised for the fund and raise those amounts by levying owners. Reserve fund - Section 100(2) of the Strata Titles Act 1985 (WA) 243 A reserve fund must be established by the company. The purpose of the fund is to 'accumulate funds to meet contingent … and other major expenses … likely to arise in the future', other than those of a routine nature.125 244 It is for the strata company to determine the amounts to be raised to satisfy that objective.126 245 Therefore, in comparing the two funds, the administrative fund is for the ongoing maintenance and upkeep of common property and ongoing periodic expenses; the reserve fund is to ensure sufficient funds for major works. That is, the reserve fund is a fund for contingent large expenses not anticipated or able to be met by the administrative fund. 123 Section 91(1)(c)(i) of the Act. 124 Section 91(1)(c)(ii) of the Act. 125 Section 100(2)(a) of the Act. 126 Section 100(2)(b) of the Act. -- 55 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 56 246 In the same section is the requirement for the 10-year plan. 10-year plan - Section 100(2A) of the Strata Titles Act 1985 (WA) 247 The strata company in this case must have a 10-year plan. The purpose of the 10-year plan is to identify: (i) the common property and the personal property of the strata company that is anticipated to require maintenance, repair, renewal or replacement in the period covered by the plan;127 (ii) the estimated costs of the maintenance, repairs, renewal or replacement;128 (iii) any other information required by the regulations;129 however (iv) it is not to include maintenance, repair, renewal or replacement of a routine nature.130 248 The plan is to be revised at least once every five years, with the plan becoming a rolling 10-year plan.131 249 Therefore, the purpose of a 10-year plan is to identify the maintenance, repair, renewal or replacement anticipated of common and personal property of the strata company in the period covered by the plan, other than that of a routine nature, and the anticipated cost of such work. 250 There is nothing in s 100 which expressly ties an approved budget to the levying of amounts to be raised. Budget and expenditure - Section 102 of the Strata Titles Act 1985 (WA) 251 A strata company must prepare a budget for each financial year to be submitted for approval to the AGM.132 The budget must take into account the '10-year plan for the reserve fund'.133 252 Section 102(2)(a) of the Act requires that a budget must be prepared taking into account, if applicable, 'the 10-year plan for 127 Section 100(2A)(a)(i) of the Act. 128 Section 100(2A)(a)(ii) of the Act. 129 Section 100(2A)(a)(iii) of the Act. 130 Section 100(2A)(a)(i) of the Act. 131 Section 100(2A)(b) of the Act. 132 Section 102(1) of the Act. 133 Section 102(2)(a) of the Act. -- 56 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 57 the reserve fund'. Therefore, while s 100 does not appear to link the reserve fund and the 10-year plan, s 102 does. 253 The commonality between the reserve fund and the 10-year plan is that: (a) neither is for work or funds anticipated to be of a routine or periodic nature; and (b) each appears to be concerned with work anticipated (in the case of the 10-year plan) and major expenses anticipated and unexpected (in the case of the reserve fund) in the future. 254 Under s 102(6) of the Act, a strata company must not make any expenditure that is not authorised by an approved budget. A budget must be prepared for each financial year to be submitted for approval at its AGM.134 The power to render levies - Section 100 of the Strata Titles Act 1985 (WA) 255 It is for the strata company to levy contributions from the owners and to satisfy the determination of amounts to be raised for the administrative fund, either in proportion to owners' unit entitlements135 or by virtue of any other method of calculation allowed for in the scheme by-laws.136 It is for the strata company to levy contributions from the owners to satisfy the determination of amounts to be raised for the reserve fund, in proportion to owners' unit entitlements.137 256 However, unless the by-laws allow otherwise, under s 100(3) the functions of determining and rendering levies must be performed by and in accordance with resolutions passed by the strata company. Thereafter, any levy rendered becomes due and payable.138 Did the plaintiff breach its financial obligations under the Act and if it did, what are the consequences? 257 The issue to be determined in the plaintiff's actions is whether the strata levies issued by the strata company were issued without power. The absent 10-year plan and the effect on the budget 134 Section 102(1) of the Act. 135 Section 100(1)(c)(i) of the Act. 136 Section 100(1)(c)(ii) of the Act. 137 Section 100(2)(c) of the Act. 138 Section 100(4)(a) of the Act. -- 57 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 58 258 The 2021 budget did not take into account the 10-year plan, because there was not one. Mr Kamil argues that this invalidates the budget. An invalid budget cannot have been approved. The budgetary process being integral to the calculations and collection of levies to support the funds, any determination of the amount, or purported collection of the levies, cannot have validly occurred. Levies raised without power are not liable to be paid. 259 To put it another way, the strata company being precluded from making any expenditure that is not authorised by an approved budget, the strata company was not entitled to raise funds from its members, there being no need to do so given there was no power of expenditure. 260 In general, therefore, he says that the rendering of a valid budget, incorporating the 10-year plan, is a precondition to the valid levying of fees. 261 Further, s 102 contains a specific provision precluding expenditure where the expenditure is not authorised by an approved budget. There are exceptions to this preclusion, one of which is that each strata company may set a limit by special resolution, or that regulations may provide, under which expenditure may occur without resort to the approved budget. Therefore: • expenditure is allowed under a certain amount even if it is not authorised by an approved budget; and • the consequences of not having an approved budget are that, otherwise, expenditure cannot occur (without other steps being taken in s 102(6)(b) of the Act, which were not taken by the plaintiff). 262 The legislature, Mr Kamil argues, has made express provision for the consequences of a failure to have an approved a budget - expenditure cannot take place. The failure to have a 10-year plan invalidating the budget, there is no ability to spend money, and the plaintiff was disentitled from rendering and collecting levies. 263 The plaintiff argues that while the duties in s 100(2) to levy funds must not be exercised except by and in accordance with resolution, as long as there is a resolution, funds may be levied whether there is a 10-year plan or not. -- 58 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 59 264 Further, the collection of the levies is a fundamental requirement of the existence and purpose of the company, without which, the strata company would not be able to perform its functions and discharge its other duties as they arise. The consequence would be that the failure of the strata company to comply with one obligation effectively discharges the company from its other duties, which is 'simply absurd'.139 265 Mr Kamil argues that a resolution cannot validate a determination of the amount to be raised when the amount to be raised has not been prepared with recourse to the true state of the financial affairs, which would only occur if a 10-year plan had been prepared and regard had been had to it. In that way, the budget, the 10-year plan, the determining and levying of contributions and expenditure, he says, are linked. Any failure in one step invalidates all steps, and, in his case, given there was no 10-year plan to be considered, levies cannot or should not have been issued. 266 The plaintiff argues that for the running of the company, money must be determined and raised once the appropriate funds are established. Otherwise, the company would not be able to run, and the property would fall into disrepair. The legislature could not have intended that the absence of a 10-year plan would result in the company not being able to levy any money or spend money in support of its other duties, such as in relation to the upkeep of common property and the maintenance of insurance. 267 Further, the plaintiff argues, where there are breaches of the Act, invalidity rendering all actions nugatory is not the answer, because the Act makes available numerous remedies. The plaintiff says that s 200 and the question of whether breaches of s 100 and s 102 are preconditions to issuing levies must be seen in the context of the Act itself providing detailed remedies for breaches. Consideration 268 This issue is resolved by determining whether the provisions relating to the need for a 10-year plan and the valid passing of a budget in reliance of that plan are preconditions to the levying of fees. That is, does the legislation render a budget invalid when there is no 10-year plan, and allow for the step from the absence of a valid budget to the absence of power to render and claim levies? 139 Plaintiff's written outline of opening submissions for trial dated 11 July 2025, par 44.1. -- 59 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 60 269 If they are preconditions to the levying of the fees, then the fees levied by the strata company were without power and need not have been paid. 270 This is a question of statutory construction. 271 There are no express consequences of failure to comply with s 100 where that expenditure has occurred. 272 Section 100(3) provides that a strata company cannot exercise any of those functions unless they are supported by resolution, or the by-laws empower the council to exercise those functions (the by-law itself having been approved by resolution). That is, the strata company cannot establish an administrative or reserve fund, determine the amounts to be raised for the fund nor raise those amounts without resolution passed by the strata company, unless the by-laws otherwise provide, which they did not in the present case. Therefore, under s 100(4) any contribution levied under s 100(1)(c) and s 100(2)(c) must be supported by resolution. 273 Therefore, there is an express precondition in the Act to determining and collecting levies - that there is a resolution. 274 Section 100(4) of the Act provides that levies rendered 'under this section' become due and payable. Accordingly, s 102 is about budgets and expenditure; s 100 is about levies, their purpose, how they are to be maintained and how the payment of them becomes enforceable. 275 A budget may be approved, with or without modification, at any general meeting. 276 The strata company must not spend money on items that are not approved in the budget, save for some exceptions fixed by resolution or regulation. Accordingly, if there is no approved budget, no spending may occur outside those exceptions. This includes from the administrative and reserve funds. 277 An approved budget, therefore, is a precondition to expenditure, barring some exceptions. 278 Section 100(3) does not expressly include s 100(2A) as a precondition to the collection of levies. 279 No resolution is required to develop the 10-year plan, estimate the cost required to affect its purpose and revise the plan every five years, -- 60 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 61 nor, specifically, to collect levies in support of it. As I have identified, the purpose of the 10-year plan is to anticipate maintenance, repair, renewal or replacement, other than of a routine nature. Section 100(2A) does not enable the raising of funds; that is left to collection for the reserve fund which is to be funded by levies raised for contingent expenses and other major expenses. 280 There is a legislative connection between the determination of the amounts for the reserve fund and the budgetary process. Accretions to and deductions from the administrative and reserve funds occur as part of the annual budgetary process, and naturally, calculating the size of the reserve fund comes from the likely cost of maintenance and replacement set out in the 10-year plan, if there is one, which informs the budget to be approved by the members. However, while it may be inaccurate and a risk to the company and the building, amounts can be estimated for the purpose of future contingencies, even without a 10-year plan. That is clearly the case because the legislature does not require a 10-year plan for smaller buildings, and a council of owners does not need a formal plan to have an idea of what may be required in the future, or to at least establish a fund into which amounts are paid for contingencies as they might arise, whatever they might be. Therefore, the absence of a 10-year plan does not itself paralyse the strata company from making an estimation on what it thinks the owners may need in the future. 281 It appears that the legislature has intended that while it might be that the duties under s 100(1) and s 100(2) cannot be exercised without resolution, it has not made a valid 10-year plan a precondition for raising funds for the reserve fund. Nor has it expressed that compliance with other sections of the Act are preconditions to the duties in s 100. 282 There being no such express provision, for Mr Kamil's argument to succeed, such a preclusion or disentitlement would have to be read into the Act. 283 In Clay and The Owners of Carinya Court Rockingham Strata Plan 25819,140 SAT Member Petrucci took the view that the strata company has a duty to establish an administrative fund under s 100 of the Act. Section 100(1)(b), in her view, empowers the strata company to determine the amounts to be raised for payment into the fund. Then s 100(1)(c) requires the company to raise the amount so determined by levying contributions on the owners in proportion of unit 140 Clay and the Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121 [285]. -- 61 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 62 entitlements of their prospective lots, unless the scheme by-laws provide for a different basis. However, that was in the context of a strata company adding an amount to a particular owner's administrative fund levy to recompense debt recovery fees. 284 In the present case, neither party raised her view of s 100(1)(b) as having any relevance to the argument before me, that is, that while the establishment of the funds and the rendering of levies are duties, the setting of the amounts to be levied are a power. In my view, in the present case nothing turns on whether the sections enabling the determination of amounts to be levied amount to a duty or a power. 285 In Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297,141 the legislature had specifically made provision for examples of breaches of notice requirements for general meetings that would not invalidate resolutions made at a general meeting. On that basis the member found that the legislature had provided that breaches of mandatory notice periods may not, therefore, automatically invalidate resolutions passed. The discretion as to whether they did depends on the prejudice suffered to the owner and whether the outcome would have been different, had the required notice been given. In that case, the resolutions were invalid prima facie irrespective of the exercise of the discretion because the minutes failed to record the number of votes for the resolution and the member could not be satisfied that the resolutions were properly passed. 286 There are no such allowances in s 100 or s 102 of the Act. Therefore, for the purposes of the facts in this matter, there is no legislative provision that allows for a discretion to be invoked to determine that a resolution is not invalid, despite a breach. However, that is not fatal to the plaintiff's claim; the question is whether, as duties, each of the duties in s 100 and s 102 are linked such that a breach of the duties in s 102 effects the exercise of the duty in s 100, such that any expenditure purported under s 102 is invalid, and any collection of monies to support that expenditure is also, accordingly, invalid, or, where resolutions are passed under s 100 allowing levy contributions where there is a breach of another part of s 100, those resolutions are invalid. 287 As I have identified, there is no link between determining the appropriate amount required and the levying of that amount with the need for a 10-year plan. In any event, the expenditure and 141 Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120. -- 62 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 63 maintenance on common property is an ongoing obligation in its own right under s 91. 288 The strata company was empowered or had a duty to determine the amount to be collected for each fund. Once the appropriate amount is determined, it must, after resolution,142 be levied and collected. Once levied, having been passed by resolution, it becomes due and owing.143 289 As a separate duty, the strata council must ensure that there is a 10-year plan that sets out certain things, and that it is revised at least once in five years and continues to extend to 10 years.144 290 In relation to budgets, a strata company has a duty to prepare a budget for each financial year and submit it for approval at the relevant AGM.145 The owners may approve the budget,146 that is, while a budget must be presented, the members are not compelled to approve it, leaving a discretion to the members to query or seek amendments to the budget before passed. The strata company is then under a duty not to spend money that is not authorised by the budget unless within some exceptions.147 291 The 10-year plan is not the budget and does not itself authorise the levying of money, but I agree it does play a role in the budgetary process. 292 Remedies available to aggrieved owners are set out in s 200 of the Act. There is no specific remedy for a breach under s 100(2A). 293 There are remedies which provide for a strata company being ordered to do something, to remedy a contravention or rectify an otherwise invalid resolution. The existence of available general remedies points away from the legislature's purpose being that the 10-year plan is a precondition to a valid determination of the appropriate money to raise for each fund, such that a failure to have the plan renders any resolution passing the amount for collection invalid and therefore a levy unenforceable. 142 Section 100(3) of the Act. 143 Section 100(4) of the Act. 144 Section 100(2A) of the Act. 145 Section 102(1) of the Act. 146 Section 102(3) of the Act. 147 Section 102(6) of the Act. -- 63 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 64 294 Section 100(2A) of the Act does not refer to the plan being in support of the reserve fund or the collection of its levies. Therefore, despite the heading of the section being 'Administrative and reserve funds and contributions' other than the general descriptions of the purpose of the reserve fund and what the 10-year plan must set out, there is nothing in the drafting of the section to connect the two. As I have identified, it is possible, practically, that a strata company may estimate a figure for contingent expenses without resort to a plan setting out the property that is anticipated to require maintenance, repair, renewal or replacement (other than of a routine nature) in the next 10 years. 295 That may not be advisable for larger, designated strata companies, and it may be that the budget would then be prepared 'blind', and that would be the purpose of the inclusion of the duty of designated strata companies to have the 10-year plan, however this is another example of the two not being so linked that the plan is the precondition of the duties and power in s 100(1) and s 100(2). 296 It could also not be the intention of the legislature that the invalidity of the resolution to collect fees would result in, sometime later when the invalidity was discovered, the money being paid back to individual owners, risking the financial life of the strata company, and the building itself. 297 Neither could the legislature have intended that a strata company may only fulfill its duties if it is not in breach of others. That is, whether the budget is compliant or not, and therefore the resolution passing it, that cannot abrogate the requirement under s 100 to set up and collect money to support the integrity of the building, or to keep in good repair common property. 298 The drafting of s 100 and s 102 suggests that while the absence of a 10-year plan might be a barrier to a properly approved budget, therefore precluding expenditure, it does not preclude determining and collecting money for the administrative and reserve funds, at the least. 299 Having considered the legislation, its purpose and context, I am of the view that: 1. Section 100(1)(a), s 100(1)(c), s 100(2)(a) and s 100(2)(c) contain duties and they must be exercised by the strata company. -- 64 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 65 2. The duty of collecting money and paying for the upkeep of common property and administering its other duties under the Act are essential to the upkeep of the building, the maintenance of the relationships between the owners and the maintenance, in the present case, of their businesses, and is essential to supporting that obligation. 3. While s 100(2A) is expressed as a duty, it is not essential to the strata company's management of the property. 4. The legislature cannot have envisaged that a breach of one duty in the Act would render the strata company liable, in fact force it, to be in breach of other duties under the Act, such as the maintenance and upkeep of the common property, which it could not do without issuing and collecting levies. 5. Neither can a strata company absolve itself of exercising that duty if and when it is in breach of another duty in the Act. 6. The Act provides remedies, through the SAT, where a council of owners has neglected its duties or passed invalid resolutions, suggesting that the legislature did not anticipate that a breach of a duty would lead to the inability to render levies. 7. It seems unlikely that the owners would be, perhaps, reimbursed where the council of owners has authorised expenditure on the upkeep of the building or other essential payments or arrangements, and that expenditure has occurred, however invalidly. That may not be the case where expenditure is alleged to have not been on common property, however, while there are some discreet allegations raised in this case which I will address later regarding spending owners' money on Mr Wheeler's businesses, those allegations were separate to the allegation in relation to the disentitled levying of fees. 8. The separation of the establishment and collection of monies for the administrative fund to support funds from the budgetary process and resultant expenditure, and the lack of a precondition for levying fees for the administrative fund being the establishment of the 10-year plan, the presence of a 10-year plan is not essential to the issuing of levies for the administrative fund. At best, Mr Kamil's argument must fail in relation to not paying his administrative fees in relation to this allegation. -- 65 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 66 9. However, the separation of the establishment and collection of monies for the reserve fund to support funds from the budgetary process and resultant expenditure, and the lack of a precondition for levying fees for the reserve fund being the establishment of the 10-year plan, despite there being a practical link between the purpose of the reserve fund and the 10-year plan, neither is the presence of a 10-year plan essential to the issuing of levies for the reserve fund. 300 Accordingly, the absence of a 10-year plan does not afford Mr Kamil a defence to the non-payment of the levies for the administrative and reserve funds rendered in 2022. Mixing funds 301 In the relevant time periods, the company levied funds in the name of the administration and reserve funds. The calculation of levies for each fund may be different under the Act; the monies for both the administrative and the reserve funds must be calculated in proportion to the unit entitlements of the owners, however, the administrative fund levies may also be calculated differently if the scheme by-laws so provide. There was no such scheme by-law in the present case, so calculations for both funds in the present case were the same, although I accept there is the opportunity under the Act for different calculations. 302 At the AGM of 17 December 2020, a simple majority approved a motion which purported to authorise the council of owners to transfer funds between the administrative and reserve funds to meet financial requirements 'in a timely and responsible manner'.148 There is no preamble or explanation for the need for the resolution minuted. The resolution came under the item '10. Acceptance of the Proposed Budget'. 303 The same resolution, under the same conditions, was made at the 2021 AGM.149 304 The resolutions were made without reference to whether the funds had been levied as administrative or reserve funds. The particulars in relation to this defence 148 Exhibit 103, page 8. 149 Exhibit 135, page 6. -- 66 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 67 305 In his defence of the 2022 action, Mr Kamil particularised one payment. In the financial year 1 July 2021 to 30 June 2022, $120,000 was transferred from what Mr Kamil called the sinking fund (a reference to the reserve fund) to the administrative fund. While Mr Kamil raises the same defence in relation to the 2023 year, he does not say how much he contends was transferred between the funds. 306 In Mr Kamil's written submissions filed on 23 July 2025, he identified seven payments he says were particulars of the transfer from the reserve fund to the administrative fund. However, at the completion of the trial he relied on only three, one of which was the $120,000 in 2022 pleaded in his defence and counterclaim. The other two being $26,571.99 on 2 July 2018 and $20,452.55 on 18 July 2018, not pleaded in the defence and counterclaim.150 Evidence of those two payments, I was told at the trial, is contained in Exhibit 40, at page 13 of that document. In fact, it is not, because Exhibit 40, as tendered directly from the Trial Bundle, contains only every second page commencing at page 2 of the expenses for the relevant year, although those pages are numbered consecutively in the Trial Bundle. In any event, I have rejected Mr Kamil's arguments for other reasons. Mr Kamil's argument in relation to the transfers 307 Mr Kamil claims that having resolved that monies levied can be transferred from one fund to another, the company has effectively rendered nugatory the legislative scheme which provides for the more restrictive form of levying for the reserve fund. Not having the power to do so, any act done for the purpose of raising such funds is invalid. 308 In his written submissions, Mr Kamil notes that the plaintiff appears to accept that the transfer should not have occurred by a note written on the Revised Budget 2018 - 2019 saying 'illegimate to transfer and non-compliance with Strata Titles Act' (sic).151 The document with that notation was not tendered and accordingly I put that contention to one side. The transfer of $120,000 309 Exhibit 184 is an email chain between the then strata manager at First Western Realty and Mr Kamil on 8 September 2022. Page 895 of 150 Defendant's Submissions Pursuant to O 12 of 24 March 2025, par 23. 151 Defendant's Submissions Pursuant to O 12 of 24 March 2025, par 22. -- 67 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 68 the trial bundle, contained in Exhibit 184, is at the end of a chain of inquiries by Mr Kamil about various financial matters concerning the affairs of the plaintiff. In the email is an explanation of the $120,000 transferred between the reserve fund and the administrative fund, as minuted in a council of owners meeting on 18 February 2022. 310 Mr Kamil is told that the transfer was to pay for the replacement of the doors pursuant to orders made by the City of Perth on 15 December 2021. Mr O'Sullivan said in evidence that in August 2021 the City of Perth wrote to the strata company identifying issues with the building including the fire doors with a time frame for their rectification. The letter is Exhibit 120. There is no challenge to that order having been made, although there appears to be a challenge in the defence or counterclaim that the reparations were made by the strata company. I will put aside that challenge for the purposes of this issue. 311 The plaintiff says that this is a proper use of the reserve fund. It was a contingent expense properly paid for out of the reserve fund, if it had not been budgeted for, and monies to pay it had not been raised by contributions that had been levied for the administrative fund. All that has occurred, says the plaintiff, is that the money has not been paid from the reserve fund direct to the company replacing the doors, but has been transferred to the administrative fund to do so. There is therefore no 'mixing' of funds. 312 There is no explanation as to why the funds were transferred to the administrative fund instead of the supplier of the doors being paid direct from the reserve fund. Mr Wheeler, who was a member of the council of owners at this time,152 was not challenged on the transfer. I have not been provided with the attachments to the email showing the resolution and instructions from the council of owners, nor the line items in the expenses report. I do not know if this was the entire amount required for the fire doors. 313 Exhibit 184 was tendered without objection and neither was the author of the email, Mandy Pickering, called to give evidence. The statement in the email appears to come from the accounts and council of owners minutes of the strata company, kept by the strata management company at the time, First Western Realty. I accept the evidence as a statement admissible under s 79C of the Evidence Act 1906 (WA). 152 Exhibit 103, Minutes of AGM dated 17 December 2020 and Exhibit 135, Minutes of AGM dated 10 December 2021 and ts 110 - ts 111. -- 68 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 69 314 I agree that the repair of fire doors subsequent to an order made by an authority is a contingency that befits the purpose of the reserve fund, being not of a routine nature, and being a major expense. Accordingly, the payment for the replacement of the doors from that fund is not an improper use of the reserve fund. 315 I am not satisfied that the payment as described by Ms Pickering breaches the Act as I am not satisfied there was a 'mixing' of funds. While it seems odd that the money was transferred rather than being directly paid to the contractor from the reserve fund, as I have identified, there is no evidence that challenges the explanation given in the subsequent minutes. That is the only evidence before me of a particular payment made under the resolution in 2022, and I am satisfied that there was no breach of the Act. The two payments in July 2018 316 The plaintiff says Mr Kamil cannot rely on these because they were not pleaded. I do not have to decide that point. I have no evidence before me that shows a correlation between these transfers and any recompense attempted for the reserve fund from levies later rendered. If the transfers alleged are breaches of the Act such that any rendering of levies to recompense the reserve fund, are invalid, it is not possible for me to determine that levies have been so calculated in the 2022 or 2023 years. That is, I do not know how or when the levies were calculated to make an order that that levy should not have to be paid. Therefore, were these particulars of the claim within the defined pleadings, I would not be able to make a finding that they have led to the rendering of levies, or expenditure, such that I could find a breach of the Act. The resolutions themselves 317 If Mr Kamil's complaint is that the resolutions themselves breach the Act, this is a broader contention which is, in my view, captured by his pleadings. He appears to be arguing that such a resolution is invalid, and therefore the entirety of the collection and expenditure process in that year and in the past and future, is invalid. 318 I agree with Mr Kamil that the structure of the legislation is that the funds are separate, for separate purposes, monies for which may be determined differently. The legislation cannot have intended that so structured, there may be a topping up of one fund to execute the purposes of that fund from the other fund. Specifically, it cannot have -- 69 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 70 intended that to occur so that the council of owners could meet financial requirements 'in a timely and responsible manner', as noble as that object is. The appropriate mechanism for that to occur is an EGM with the purpose of raising more funds by resolution. 319 Otherwise, the raided fund may be left dry. The owners may well query why their money levied for the purpose of contingencies or major expenses, when those contingencies or major expenses arise, is gone without relevant expenditure. 320 However, while it may not have been empowered to generally mix the funds to attend to either administrative expenses, or reserve fund expenses, I am not satisfied that any such resolution of itself has the consequences contended for by Mr Kamil, that is, that any levy issued by the strata company at any time is invalid and need not be paid, or that any expenditure in that period is without power and should not have been levied, or that any transfer that may have occurred in the past under such a resolution is invalid and invalidates the whole of the process of collection and expenditure. The resolution has no effect on the overall levies when there is no evidence of any transfers or levies for recompense under that resolution for the purpose of simply topping up the administrative account in the relevant year. Past reliance on the resolution is not relevant. 321 As I have found in this case, there may be times when money has been transferred to the administrative fund for particular purposes relevant to the reserve fund. Therefore, while the resolutions themselves may have been invalid, that has no bearing on the levies, collection, budgetary and spending process in general of the strata company. Mr Kamil's reliance on this contention, or that the $120,000 or any other money was paid from the reserve fund to the administrative fund, or any resolution addressing any transfer, does not afford him a defence to the payment of his levies in 2022 and 2023 nor does it support any counterclaim. Special levies 322 The term 'special levy' does not appear in the Act. Mr Kamil's argument is prefaced on the requirement under s 100 of the Act that a resolution supporting the levying of fees should only be termed as being for the administrative fund or the reserve fund and in this case the council of owners rendered levies as special levies which were for no specified purpose, or 'at large'. -- 70 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 71 323 At the 2021 AGM, item 7.3 of the minutes reflects a resolution passed to 'accept the Special levy for the period 1.7.2021 to 30.6.2022 at $80.21 per unit entitlement per annum to raise $77,000 for the year, …'.153 Item 7 is entitled 'Establish Administrative and Reserve Levies for the year', and also minutes resolutions passed for the amount to be levied for the administrative fund (Item 7.1) and the reserve fund (Item 7.2). There is no explanation in the minutes as to what that special levy amount was being raised for, or whether it is for the administrative or reserve fund. That is unfortunate, and risks, as has occurred in this case, queries being subsequently raised about the provenance of such a levy. 324 The minutes reflect that an issue was raised in 'Other Business' querying the lack of action and accountability to remedy local government orders. The minutes are silent on whether this item is connected to item 7.3. 325 At an EGM on 29 June 2022, the owners dealt directly with the orders for works to be done by the City of Perth. It was resolved154 to approve and authorise a special levy on the owners to fund works, in summary, for: • fire detection and occupant warning systems, $179,927; and • replacement of asbestos-containing fire doors, $139,392. 326 The total cost of $319,319 was proposed to be covered by 'the special levy of $77,000 … raised in January 2022' and then by further instalments as set out in a schedule of instalments. The instalment schedule takes the payments into the 2023 year. There is no provision for a separate special levy in the minutes of the 2022 AGM for the 2023 year. 327 The term 'special levy' denotes a levy that is a one-off, non-recurrent item. Therefore, it is neither for the ongoing maintenance of the building and company, nor for the saving of money for as yet unknown contingencies or other expenses likely to arise in the future. 328 It is proper, then, that the purpose of the levy is differentiated in the resolutions for the raising of the funds, provided it does not also include the establishment of a separate fund. 153 Exhibit 135. 154 Exhibit 172. -- 71 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 72 329 Neither of the minutes exhibited identify the fund into which the money raised by the special levy are to be paid, however, in my view that does not matter. By the time of the 2021 AGM, the City of Perth orders had been received - that much is clear from the discussion in 'Other Business', and at least notification of the works had been received by virtue of Exhibit 120 - the letter from the City of Perth. It is an available and strong inference that the special levy passed by resolution at the 2021 AGM is connected to that work, given the then reference to it in the minutes of the June 2022 EGM. 330 Accordingly, while the minutes of the 2021 AGM appear to be deficient, I am not satisfied that the 'special levy' was issued at large. Neither am I satisfied that the special levy is separate and distinct to the support of the administrative or reserve funds, and therefore levied outside s 100, either therefore without power, or not liable to interest accrual. The rendering of or resolutions supporting a 'special levy' was not a breach of the Act in the present case. Did the plaintiff pay for items outside of their power? 331 I turn now to the allegation that the plaintiff used money to pay for matters outside their power, causing them to be in breach of the Act and unable to collect levies. Surveillance devices 332 Mr Kamil claims that the strata company paid for the desk and wall area of the Inner City Apartments Hotel to be swept for surveillance devices between July 2020 and 10 December 2021. Mr Wheeler gave evidence that he was aware that the strata company paid for a sweep for surveillance devices in around March or April 2021. He was a member of the council of owners at the time. He was there when the sweep was performed and the entirety of the ground floor was covered including the toilets. The investigator found two cameras focused on Mr Wheeler's business computers, among others. He explained that he and the private investigator located cameras and followed the leads to a recorder. There were 10 cables coming from the recorder which they followed to discover eight or 10 cameras working.155 333 That was the extent of Mr Wheeler's evidence in relation to that sweep. 155 ts 105 - ts 106. -- 72 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 73 334 Given Mr Wheeler's evidence that the sweep located cameras focused on his computers, it seems inevitable that there must have been some type of activity carried out by the investigator around his company's reception desk. However, from the unchallenged description he gave of the method used by the investigator, I am not satisfied that this was a sweep specifically of the private areas of business. His evidence was that the majority of the ground floor is classed as common property. While I have a diagram of the building, Exhibit 21, I do not have photos and it is difficult to tell from the diagram and Landgate documents exhibited the space in which the wall and desk of the Inner City Apartment Hotel is such that I could determine whether there was a specific 'sweep' of that area that did not need to occur. 335 Mr O'Sullivan thought that the cleaning contracts stopped around the respective reception desks, and did not think they were classed as 'common areas' and neither did he think he should go behind Mr Kamil's desk, or clean it, and he expected his staff to clean their own desk area.156 However, in my view, that is not confirmation that the desk areas are not common property. From the diagram and Landgate documents there is no indication that there are, other than Lot 80, which I understand is not part of the reception area, other non-common areas on the ground floor. 336 Mr Wheeler's evidence was that the investigator and he 'swept' the common areas on the ground floor. That may well have incorporated, therefore, his company's desk and wall. I am satisfied from Mr Wheeler's evidence that the arrangement for the sweep, and the sweep itself, were of the common areas as a whole, rather than specifically for the purpose of determining whether there were any cameras on the desk and wall. If they incorporated those areas, then that was as a result of where the cameras and leads were found. The crux of the challenge appears to be the sweep of Mr Wheeler's area. There is no challenge in the pleadings to a broader sweep, or the use of the owners' funds to do so. I am not satisfied that the sweep was specifically for Mr Wheeler's business area and therefore I cannot find that the plaintiff used money to pay for matters outside its powers on this occasion. 156 ts 150. -- 73 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 74 $2,000 for the laundry of Inner City Apartment Hotel 337 Mr Kamil gave evidence that of the apartments owned or managed by him, some did not have laundries. However, there was a laundry in the building and this was used by his tenants until the laundry was closed (by Mr Beamish).157 Mr Kamil did not give evidence of, nor point me in the direction of, a document which proved that the strata company made any payment towards a laundry run by Inner City Apartment Hotel. 338 Mr Wheeler denied that the strata company paid $2,000 for the Inner City Apartment Hotel's laundry, nor any other amount.158 339 Based on the evidence, I am not satisfied that the strata company made any such payment, out of power or otherwise, and this defence does not support Mr Kamil's non-payment of his levies, in whole or in part, in any year, nor his counterclaim. Did the plaintiff breach its duties in relation to the building, Mr Kamil's property and the provision of services? Breach of duty to keep in good and serviceable repair common property 340 Mr Kamil claims in his defence in both actions and by way of counterclaim that the plaintiff breached its duty to keep in good and serviceable repair, properly maintained and to renew and replace where necessary, the common property. 341 He also argues that that with a 10-year plan prior to mid-2022, the company may not have breached its duty under s 91(1)(c)(i) and s 91(1)(c)(ii) of the Act, which becomes relevant to his claims about the money he has spent and the work he has done. 342 He says that the failure has led to: • him having to refund guests for the lack of advertised amenities; • him having to do work and spend money on behalf of the plaintiff; • him suffering loss and damage; • him being put under illegitimate pressure; and 157 ts 225 - ts 226. 158 ts 104. -- 74 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 75 • the plaintiff receiving a benefit it was not otherwise entitled to, because it was the plaintiff's obligation to spend that money and do that work. 343 The plaintiff: (a) disputes that there has been any breach of s 91 of the Act or any other obligation owed to the owners; and (b) says that the amounts claimed in the Scott Schedule are: (i) in the case of some, time-barred; (ii) not supported by evidence that the work was actually done; (iii) supported only by invoices which can be given no weight; (iv) supported by payment advices which are inconsistent with the work claimed; (v) in the case of some, supported only by quotes; (vi) in the case of some, claimed work by Mr Kamil's company, and not himself, his company not being a party to these proceedings; (vii) supported by documents which are not contemporaneous and claim for large, long past time periods, prepared only after the lodging of the writs for unpaid levies; (viii) in the case of some, work which appears to relate to Mr Kamil or his company's property, rather than common property; and (ix) in any event, supported only by Mr Kamil's evidence which is so unreliable that it must be rejected. What is the duty and how is it to be carried out? 344 Under s 91(1) of the Act a strata company must: -- 75 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 76 (a) control and manage the common property for the benefit of all the owners of lots; and (b) keep in good and serviceable repair, properly maintain and, if necessary, renew and replace - (i) the common property, including the fittings, fixtures and lifts used in connection with the common property; and (ii) any personal property owned by the strata company, and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause. 345 Under s 91(2) a strata company may improve or alter the common property in a manner that goes beyond what is required under s 91(1). 346 Mr Kamil says that the plaintiff also owed him a duty not to damage his property which was within the strata property. 347 While establishing financial obligations, s 100 of the Act also bears the inference that a strata company must have a proper maintenance program, with the funds to support it. The strata company must discharge its obligations and to do so has the right to be supported by the administrative fund under s 100(1)(a) of the Act. 348 The plaintiff did not challenge the existence of those obligations, and I agree that they are plainly obligations under the Act. 349 As a result, Mr Kamil argues that, in combination with the damage to his sign and the payment to CAG, he has suffered loss and damage of $25,000. 350 Further, he claims that the repeated breach of its obligations under s 91 with a failure to ensure that there was a person responsible for generally looking after matters to do with the common property has caused him to spend money and do work for the benefit of the strata company since 27 August 2016, the particulars of which are set out in the Scott Schedule. 351 To award damages I must be satisfied that there was a breach of an obligation which caused Mr Kamil loss and damage. 352 To be satisfied that the money he has spent and expenses he has incurred should be paid to him, offsetting the amount the plaintiff claims against him, I must be satisfied that there was a breach of -- 76 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 77 obligations, that that breach led to work having to be done by Mr Kamil, and that that work done as a result was for the benefit of the strata company. 353 In relation to the claim of negligence, I must be satisfied that a duty existed, that there was a breach of that duty, that the negligence caused the work to be done or the expenses to be incurred and that the work done was to the benefit of the strata company. 354 To be satisfied that there was illegitimate pressure such that Mr Kamil was caused to pay for repairs to the common areas as set out in the Scott Schedule, I must be satisfied that the breaches caused Mr Kamil to act, that he was entitled not to have to act and that his actions caused the strata company to be unjustly enriched by the work he did or organised and paid for. 355 Mr Kamil argues that in addition to his evidence about the state of the building and the work he was compelled to undertake or organise, evidence of the breaches is shown in the failure of the insurance company to renew building insurance, the City of Perth order and the WorkSafe improvement notices. That is, the common property has been in disrepair and not maintained over the years of his claim, and that this is a breach of the obligations as is self-evident from the condition of the building. 356 Further, he says that the fact of the breaches is evident in the behaviour of the strata managers from time to time. 357 The plaintiff argues that it is not sufficient to point to maintenance issues in a building and claim a breach. The breach lies not in the fact of the need for maintenance and repair, but in the strata company's response, once notified, or in a failure by the plaintiff to have a maintenance, management and financial plan, such that the issues are not foreseen or dealt with. Therefore, argues the plaintiff, Mr Kamil must prove an absence of process of maintenance such that the building fell into disrepair, and there was a failure to restore to good and sound condition common property that needed rectification once the plaintiff knew about it. 358 The plaintiff says that the obligations under the Act, as they relate to a particular strata company, must be assessed in the context of the building. Not all buildings require or can afford someone constantly present, or for a large part of each day, to look after the common property and report any repairs beyond that person's capabilities. -- 77 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 78 Expectations must also be reasonable about the capacity of a council of owners or a strata manager to address issues as they arise. 359 Further, there is nothing in the Act that suggests that a full-time, ever-present caretaker is required to fulfill the duty under s 91. Mr Kamil suggests that there were so many issues with the clientele that the building did require constant monitoring, in conjunction with the fact that operating there were hotel businesses that required presentable and well serviced premises. 360 The plaintiff accepts that Mr Kamil was entitled to mitigate the effects of any breach on his business, however, argues that to succeed in his defence or counterclaim relying on a breach under s 91, he must prove that the money or time he spent was as a result of that breach, and that there is a quantifiable loss, whether potential or actual. Simply taking the steps in mitigation is not enough. Neither is simply attending to maintenance, repair and security items of his own volition. The parties' arguments on the evidence 361 Mr Kamil's evidence was that when Mr Davis was at the building, everything was kept well. Then he left and the building deteriorated with no one taking his place. Mr Wheeler gave evidence largely about his own business, rather than about the attitude of the council of owners. As I have identified, I found Mr Wheeler's evidence to be unreliable in relation to the state of the building. 362 Mr Kamil points out that Mr O'Sullivan only took an interest in the overall state of the building from about August 2022 and is not present at night or on weekends. His evidence was that despite his presence, there are still ongoing issues with graffiti, damage and vandalism. 363 Mr Kamil highlighted Mr Beamish's view of the role of a strata manager, only responding to issues that he was notified of through an online system, and then only after he had triaged the matter raised. He rarely visits the property. When Mr Kamil tried to raise matters, he was told not to call him, and, according to Mr Kamil, ignored Mr Kamil's communications. Mr Beamish explained his reticence for Mr Kamil to use his personal mobile number as being because there was a process in place for raising issues, monitored by his staff. Mr Kamil says that even where there were emails exhibited which showed Mr Beamish did respond to him, they were dismissive and indifferent, not recognising that Mr Kamil is one of effectively only -- 78 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 79 two owners in a position to complain, with a large holding and therefore interest in the upkeep of the building, and who is the only one there constantly with direct knowledge of the state of the building. 364 Mr Kamil says that the breaches therefore include the strata company's reliance on him and having strata managers who do not attend the building and who reject his notifications of damage, 'triaging' them such that works important to the owners are not carried out. That is, while there are notifications to the strata manager, nothing is done. 365 I also have the minutes of the 2021 AGM and EGM where Mr Kamil and Mr Wheeler raised issues of upkeep of the building and the lack of attention to the City of Perth order. 366 The plaintiff points to its use of strata managers and contractors, the use of an online system, the fact that Mr Beamish did respond to Mr Kamil acknowledging his complaints and that Mr Kamil was paid for work done or costs incurred were properly incurred. The plaintiff argues that that is what is required in the context of the building and the funds available from time to time. It would not be considered proper, in those circumstances, it says, despite the ongoing issues with the damage to the building, to have someone present 24 hours a day, which is what Mr Kamil is really proposing. 367 The plaintiff argues that leaving aside the invoices on which I can place no weight to determine whether the work was done or the cost was incurred, there is no evidence of what the loss was to Mr Kamil's business, or himself, or was likely to be, or how the steps taken mitigated that loss, even where there may be independent evidence of work or cost. 368 The plaintiff uses as an example the payments to Millennium Screens, seen in Exhibits 88 and 89 and then in Exhibits 90 and 91 in 2020 and Exhibit 163 in 2022. Mr Kamil said he put screens on the outside of the building, which is common property, but there is no evidence that this was required because of a breach of the strata company's duties, or that it was mitigating any particular loss. Mr Kamil's evidence was that the strata company did not recognise that the windows form part of the strata common areas, nor that the absence of the screens posed a safety risk. He had told the strata company that they should pay for it because it was a safety issue. They refused. He argued with them prior to putting the flyscreens on the windows. -- 79 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 80 Despite the refusal, he proceeded with the work because it was for the benefit of the building.159 The plaintiff argues that this is nothing more than discretionary spending that Mr Kamil chose to perform for his business, which the strata company should not have to compensate him for, particularly because they were put there without its permission. The plaintiff says that even though Mr Kamil paid some money towards work done, this is not evidence of a duty being owed, nor a breach of that duty, nor the plaintiff's negligence, nor Mr Kamil mitigating his loss due to that breach, nor proof of his loss or damage. Neither can it be, due to Mr Kamil choosing to perform the work and absent any breach, evidence of illegitimate pressure or unjust enrichment to the plaintiff. 369 While it might be the case that there were clearly issues with the building, and issues which the strata company was aware of - the declining of insurance, the City of Perth order and WorkSafe improvement notices all suggest that that is the case (remembering I accepted the documents in relation to those matters for the fact of their communication, not for their contents), and the evidence of various people about antisocial behaviour and vandalism, the plaintiff says that Mr Kamil's evidence does not rise to his work done and expenses incurred being actual responses to what was in the order, notices or the reasons the insurance was declined. Neither was it clear why the insurance was declined such that I can determine it resulted from a breach of a duty. There can be no damages in the declining to insure itself; there is no evidence that it cost owners more to obtain other insurance, for example. 370 Further, argues the plaintiff, even if there is a connection between the declining of the insurance, the City of Perth order or the WorkSafe improvement notices and the work done and expenses incurred by Mr Kamil, Mr Kamil's invoices and claims are too general and not time specific to his fixing of items. The plaintiff says it is not sufficient to say that because WorkSafe issued improvement notices in 2023, that shows Mr Kamil had to do work in 2019. The plaintiff says Mr Kamil's evidence is too general to determine what needed doing when, such that I could safely conclude that breaches of the Act or negligence occurred at the time items required fixing. This is particularly the case where the evidence of what was done or expenses that were incurred is so broad and unreliable in any event. 159 ts 302 - ts 303. -- 80 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 81 371 Neither is it evidence that there was, despite the plaintiff's knowledge of what was contained in the notices and their knowledge generally, a breach of its duty. 372 While there was some suggestion in Mr Kamil's evidence that he was asked by the strata manager, or had offered to the strata manager, to perform work but that payment was not forthcoming, that is not what Mr Kamil has pleaded, and I have put that evidence to one side. In any event, the evidence of the Nifty Cleaning Team cleaning the kitchen suggests that where that work was requested or agreed, it was reimbursed, with congratulations. That leaves open the inference that had the work been requested or agreed, payment would have ensued. 373 I agree with the plaintiff's arguments. It is not sufficient to simply allege that the building was in disrepair, and claim damages, or costs for work done or expenses incurred. There must be a link between the disrepair and the council of owners failing to act once notified. 374 I do not share Mr Kamil's view of Mr Beamish's responses. In my view it was reasonable for him to point to the online system of reporting, rather than phoning him direct. As he has explained to Mr Kamil, he may not always be available, but his staff monitoring system is available between 8 am and 11 pm, seven days a week.160 It was also reasonable for him to determine what was urgent and what could be addressed by the council of owners at its regular meetings. Whether financially restrained because of the failure to obtain levies, or just in general, it is not reasonable to expect a strata manager to issue a work order every time an issue is raised. It is the strata company who is appointed to manage the property and the funds, not the strata manager. 375 Neither is the strata manager responsible for the time frames of builders,161 nor in my view the fact that the owners have chosen to use the building as short-stay accommodation, nor its apparently troublesome chosen clientele.162 376 I am not satisfied that Mr Beamish's responses in his emails in Exhibits 340 - 345 are dismissive. He takes the time, several times, to explain to Mr Kamil why he had difficulty responding to him, and the appropriate system for the best results. Mr Beamish must respond 160 Exhibit 345. 161 See, for example, Mr Beamish's email to Mr Kamil in Exhibit 340. 162 I heard evidence from each witness as to the clientele of the building, and there are ample notations on the minutes of meetings exhibited about the difficulties clientele were causing. -- 81 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 82 to the council of owners, and contractors, such as Mr Wheeler's company, and not to the apparent voluntary taking on of the duties of the council of owners and contractors by Mr Kamil, until at least that council of owners is removed. 377 From August 2022 the strata company relied on Mr O'Sullivan to repair and address what he could, or report it. While he was not there constantly, he would not need to be to determine problems with items such as mould, paint or graffiti. Those items do not require immediate attention. He said he checked the CCTV footage daily and did daily walkarounds. He organised for rubbish to be cleaned up sometimes twice daily. He was aware of cockroaches in the Wheelers' apartments, which he took steps to control, however, that was not part of the Wheeler cleaning contract with the strata company, and he said he could not speak about pests in 'the whole building'.163 It is unclear whether that meant the whole building including Mr Kamil's apartments, or including common property, or both. 378 The plaintiff says that it is inherently improbable that Mr O'Sullivan would have missed items claimed for by Mr Kamil if they indeed were issues that arose on common property. However, I note the WorkSafe improvement notices started coming in February 2023 and from their titles, some relate to what must have been obvious such as missing floor coverings and treads on stairs. Therefore, the property may not have been in suitable repair during the time of Mr O'Sullivan either. 379 The evidence of defects and whether they were rectified in a timely manner is also uncertain prior to Mr O'Sullivan's role, for the reasons I have set out in relation to my caution over Mr Wheeler's evidence. He was the witness who predominately spoke to the condition of the building prior to August 2022. However, I note from the 2022 EGM, the City of Perth order relates predominantly to actual construction defects, specifically the implementation and upgrade of fire warning systems and doors and the removal of asbestos, rather than daily maintenance and repair requirements. Otherwise, I have Mr Wheeler's view of the upkeep of the building compared to Mr Kamil's. 380 Given I am not satisfied that I can rely on Mr Kamil's evidence of the state of the building, nor the invoices supplied by him, either under his own name or in the names of third parties, who knew what about the 163 ts 149. -- 82 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 83 building, and when, and what the strata company were doing about it, and irrespective of the fact that I place little weight on aspects of Mr Wheeler's evidence, I am unable to make a finding that the strata company has breached its duties prior to 2022, in 2022 or in 2023. 381 I turn now to the specific aspects of Mr Kamil's claim grounding his general claims of loss and damage, negligence and unjust enrichment. The incorrect payment to the owners associated with Central Apartment Group in the 2022 action 382 CAG was appointed by the liquidators of Mr Davis's company to manage the lots for which he was responsible. CAG was to reimburse owners for the use of utilities. The amount was to be paid to the strata manager, who would then pass the amount on to the relevant owners. The strata company paid from its account the money without first receiving funds from CAG. 383 Exhibit 60 is a collection of papers from December 2019 containing reports of the treasurer, Mr Davis for the council of owners. Generally, the reports relate to issues in accounting and bookkeeping performed by the then strata manager. They also include Mr Davis's narrative of his attempts to understand the CAG payment, and how it occurred. It records that records showed that the strata manager agreed they had paid $96,215.97 to the relevant owners on the basis that the requisite sum had been paid to the strata manager by CAG. 384 The report by Mr Davis suggests that this payment put significant stress on the accounts of the strata company. In follow up by Mr Davis with the strata manager, the strata manager conceded that the money had been invoiced but not received from CAG. Mr Davis reports that the strata manager representative said, 'I must have mistaken another entry in the accounts for a payment'.164 The tender of Mr Davis's records was not challenged, and I am satisfied that they are a business record admissible under s 79C of the Evidence Act. Therefore, while Mr Kamil did not give evidence about this payment, and Mr Davis was not called, I am satisfied that there is evidence before me in relation to this portion of his claim. 385 Mr Kamil has particularised this incident as being part of his defence to the plaintiff's 2022 action for the strata fees, and as a particular of his counterclaim. In relation to his defence, he pleads that 164 Exhibit 60, page 273. -- 83 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 84 the plaintiff has breached its duty to the defendant in that it unnecessarily caused the payment to be made and the liability to accrue, that is, the plaintiff paid the amount despite the amount not being owed by it. He has calculated his portion of that payment as $18,040.50. That is, this is another example of the strata company doing something outside of its power. 386 I note that the narrative provided in the treasurer's report also contains what appears to be copies of communications with the strata manager, Melodie, about the payment. An audit was requested and strategies for the recompense of the money to the strata owners were suggested. The strata manager was put on notice that it is, in the opinion of the writer, Mr Davis, for the strata manager to 'carry the quantum of funds mistakenly paid out'.165 387 Further, the notes of Mr Davis in his narrative suggest that the strata manager had asked the council of owners at the 31 October 2019 meeting if it would support a payout of funds received from CAG. Mr Davis records that he pointed out that this was not a strata company matter, but that consideration would be given to the request. It appears that there was then a discussion and a resolution was passed approving for disbursement 'the money as received into the strata accounts'.166 388 I am satisfied that it appears the strata manager was in error in thinking that the funds had been received by CAG before the payment was made to the affected owners. As recorded in Mr Davis's narrative, it appears that the council of owners were of the view, on that basis, that the money had been received from CAG. There has been no challenge to the contention that it was such a mistake. A council of owners owes a duty to the strata owners to exercise proper care with owners' funds; however, I am not satisfied that the strata company has any liability for the mistake of the strata manager in this situation. I am not satisfied that the council of owners, in this situation, unnecessarily caused the payment to be made. 389 Even without Mr Davis's narrative, there was nothing before me that suggested that the payment was directed or ordered by the plaintiff such that it caused the payment to be made unnecessarily. It may have been made in error, however, without Mr Davis's narrative I would have had no detail about how the payment came to be made; an error of itself is not sufficient. 165 Exhibit 60, page 269. 166 Exhibit 60, page 270. -- 84 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 85 390 While not the subject of a particular in relation to the defence or counterclaim, I note that the invoice which is Exhibit 11 includes an item for 'Sat Application against CAG on behalf of strata' for $1,500. Mr Kamil explained that he had included that item in that invoice because he started an action against CAG which the strata company ultimately took over. He had spent time and money on the application, paperwork, 'all that stuff that you guys charge as a lawyer' although he was not charging as a legal practitioner. The strata company eventually took over the application and therefore owed him.167 391 I am not satisfied that there is any breach of duty by the plaintiff such that it unnecessarily caused payments to be made and liability to accrue, leading to Mr Kamil suffering loss and damage. 392 Further, in my view, the legal cost pleaded is another example of Mr Kamil adding items to the list of either work he undertook or what he said he had spent without any real thought as to quantification of those amounts or the basis on which he should be paid them. Removing the sign in the 2022 action 393 In about 2017 Mr Kamil placed a sign advertising his business at the front of the building.168 394 The invoice, which is Exhibit 11, includes an item for 'Installed sign on canopy front of building' for $4,500. Mr Kamil explained that he had included that item in that invoice because he had erected the sign to advertise his business which he thought was in the best interests of the appeal of the building, and therefore the owners should pay for it.169 395 At first in his evidence, he said the strata company had agreed to the erection of the sign, but the Wheelers had destroyed it in 2021.170 396 However, later in his evidence he said:171 (Indistinct) no control of the building, so we took control when it was necessary. … We didn't have a - a caretaker in the building. … When I had installed it, there was no problems. Only when the caretakers of the Wheelers took over that they - - - 167 ts 324 - ts 325. 168 ts 323 - ts 324. 169 ts 324. 170 ts 324 - ts 325. 171 ts 355 - ts 356. -- 85 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 86 397 And then he said, when asked again about whether he had permission:172 They never complained about it - - - … - - - until the end. … They only complained a year later. … It was up there for a - a good year, and they never complained about it. … Same with the cameras. They were up there for four years before they objected to it. 398 Mr Kamil gave evidence that he arrived at the building early one day in 2021 and saw Mr Wheeler and Mr O'Sullivan at the front of the building with a ladder and some tools. Mr Wheeler went up the ladder and damaged the sign. The company name could no longer be seen. The underlying board had also been damaged. The sign cannot be reused and requires new backing and artwork. At that time there was an action on foot against Mr Kamil in the SAT for orders that he remove cameras and signs and to stop him collecting parking monies. The litigation had not at that time been resolved.173 399 Mr Wheeler gave evidence that he removed the stickers which said the words Perth City Apartment Hotel. He did not remove the sign itself, although he said that the shrink wrap around the sign was wrecked by his actions. He had been instructed by the council of owners to do so.174 By that he explained that 'we' had breached Mr Kamil but did not think that he was on the council of owners then.175 400 Mr O'Sullivan gave evidence that Mr Wheeler came to the building one morning and said that he had authorisation to remove the sign and asked whether he could assist him as he was wanting to scrape it off. They removed stickers that were on a metal board. The stickers were over another sign. They may have left bits of stickers on there but as it was getting a little bit unsafe to continue, they stopped. The board itself was intact and left as is.176 172 ts 356. 173 ts 229 - ts 230. 174 ts 107 - ts 108. 175 ts 128. 176 ts 140. -- 86 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 87 401 Mr Kamil now claims $4,500 because that is what the original installation cost or 'thereabouts' for the breach of duty to not damage his property. He does not have a quote to replace it, but he knows the price, it would be roughly the same as what he had paid before.177 402 There was no evidence adduced or challenged by either party that the owners or council of owners had passed a resolution that Mr Kamil was in breach and that the sign was to be removed. At its highest: • I heard from Mr Wheeler who said the council of owners had told him that it had breached Mr Kamil for the erection of the sign and instructed him to remove it; and • the minutes of the 2021 AGM, under the heading of 'State Administrative Tribunal', note that Mr Kamil did not have permission to fix signage to the building, however, proceedings in the SAT in relation to 'Signage issues' were withdrawn on the basis that any future signage would need council approval, as is normal process.178 403 The plaintiff says Mr Kamil did not have permission to place the stickers on the sign, or to erect any sign where this one was. Given his evidence, I am not satisfied that Mr Kamil sought or had the permission of the other owners. 'Constructive' permission in the form of no reaction for some time, in the circumstances of the erection of this sign on common property where there are two competing short-stay businesses, is not sufficient. That appears to have been the basis of the action in the SAT, given the minutes of the 2021 AGM. 404 It may well be, as the plaintiff suggested in closing, that once affixed, the sign became part of the common property, and the council of owners were entitled to remove the sign whenever they wanted to. 405 Whether Mr Kamil gave over ownership when he put the stickers on the sign or not, he did not have permission to put the sign there. It is for the owners, through the strata company, to manage common property. He must accept the consequences of not having permission, including that the owners were entitled to remove it, with the risk that it would be damaged. It is unfortunate that this occurred when the SAT proceedings were under way, however, in my view, that would not 177 ts 357. 178 Exhibit 135. It seems likely from the evidence that the action against Mr Kamil was withdrawn because the sign had already been removed. -- 87 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 88 automatically stay any action on the part of the council of owners, and I have not been provided with any indication that such a stay was ordered. 406 Further, the evidence from Mr Kamil about the sign, its cost in erecting it and its replacement value is unsatisfactory. I am not satisfied that I have any reliable evidence quantifying the cost of replacing it and therefore any harm caused to him by its removal. I make this finding on the basis of my findings regarding his reliability and my rejection of any oral evidence he gave, and the invoices he has produced in this trial supporting that evidence, but also by the general nature of the estimate he has provided. 407 Accordingly, I am not satisfied that this portion of the defence has been substantiated nor does it support his counterclaim. $21,000 for State Administrative Tribunal proceedings in the 2022 action 408 I do not understand that Mr Kamil is specifically making a claim for $21,000, but using this as an example of the type of measures he has had to turn to due to the breaches by the plaintiff. I do not accept that that is what Mr Kamil had to spend, nor that he had to spend that money at all. Having rejected his evidence about the work done and expenses incurred on the building, I cannot place any weight in his evidence or claim about why he has undertaken the SAT proceedings or how much it has cost him. Refunds to customers because of the closed laundry and gym and broken lift in the 2023 action 409 Neither a gym nor laundry is marked on the strata plan or by-laws.179 Mr Beamish gave evidence that when he took over as strata manager, he was concerned that the gym was not being maintained and it was unclear to whom the equipment belonged. He decided that that was a risk to the strata company and recommended to the strata company that they restrict access, and he was instructed to lock the areas. Mr Kamil pointed out in evidence that the maintenance of a gym is part of the 10-year plan, which became Exhibit 337, but at the date of the trial the gym was still not operative. He had maintained it for some years. 179 ts 164. -- 88 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 89 410 Mr Kamil said it was his view that the strata company was going to take over running the gym, however, as soon as the Wheelers 'took over' they closed it and changed the lock.180 411 That allegation is not born out by the evidence of Mr Beamish, who appears to have recommended the locking of the laundry and gym of his own volition to the strata company. 412 Mr Beamish also gave his reasons for closing the laundry which I have recounted in summarising his evidence. He made the same recommendation as the gym and received instructions to go ahead and lock any area known as a laundry. 413 He recalled that the lift drive mechanism broke in late 2023 and took 4 - 6 weeks to be fixed. I am not satisfied that, in the context of Strata Property WA overseeing a regular maintenance program on the lift, that that breakdown can be seen as a breach. I have no mechanical evidence that links that type of breakdown to something the strata company did, or did not do, in the upkeep of the lift. 414 In any event, it was Mr Kamil's evidence that it was his company which provided the refunds. Having found, as seen below, that his company is a separate entity to him and was not simply acting as his booking agent, I am not satisfied that Mr Kamil can recover these amounts in his personal capacity. 415 There is no other evidence about the reason for the refunds, whether they were refunds for the total amount, or part of the total, nor why refunds were specifically sought in that amount, and how the locked rooms or broken lift specifically impacted on the business or those occupants. I am not prepared to act on Mr Kamil's evidence alone as to this issue, for the same reasons that I am not prepared to act on his evidence regarding the invoices he issued and the work he says he did or the expenses he said he incurred, and with no other evidence, I reject his claim in relation to the refunds. Are some of Mr Kamil's claims not claims by him but by his company? 416 Some of the invoices exhibited are under the business name of Mr Kamil and some are in the name of his company. The plaintiff says that whatever other findings I make about their content, Mr Kamil is not his company, and the company has not sought to join the actions to make its own claims for work done. However, the invoices issued by 180 ts 227. -- 89 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 90 the company suggest that it was the company who performed the work and gave the refunds to guests, not Mr Kamil. The plaintiff says that therefore any work or money spent in the name of the company should not be considered. Similarly, any refunds for bookings made with the company cannot be the subject of Mr Kamil's claim, as he personally has not suffered the loss. 417 It was common ground that a company is a separate legal personality to its shareholders and directors, even where one person is the sole director and shareholder. A shareholder has no legal interest in company property merely because they own the shares. 418 However, Mr Kamil says that the company was acting as his agent and was interposed into his management structure; that is, it was the management agent of his business. Otherwise, he was the one there all the time, he was the one performing the work and, most importantly, he was the one who remained owner of the units, not the company. Therefore, the company provides services to Mr Kamil, and by doing any work and making any claims for payment, it was acting only as his agent, not as an independent entity. Accordingly, while the invoices were rendered in the name of the company, that is only as an agent of Mr Kamil, not the owner of the debt he says is owed. 419 From Mr Kamil's evidence it was difficult to determine the purpose of the company. It is not clear from his evidence under what capacity the company was acting as his agent; it did not appear to be simply an invoicing agent - while Mr Kamil may still have owned the units, it was the company that appears to have run the hotel business, paying invoices from Mr Colley for work he performed on the common areas and the units, and who employed other staff as required. Further, by rendering invoices from the company, the inference is that the company has performed the work, not Mr Kamil personally, albeit it might have been Mr Kamil who actually did the work. If that is the case, then it is the company that has suffered the apparent loss, not Mr Kamil personally. 420 Mr Kamil cannot claim losses invoiced by the company, as they are not his losses, even though he may suffer from the devaluation of his shares if the company is not repaid. 421 Therefore, claims through invoices rendered or for work done or expenses incurred after at least August 2023 on company letterhead are precluded because the company is not a party to this litigation. -- 90 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 91 The work done and expenses claimed 422 I have summarised Mr Kamil's evidence about some of the invoices and work done. I have also reviewed all of the invoices, emails and evidence of payments made to him and others tendered. From those reviews, I found that Mr Kamil was not a reliable witness. The consequences are that the invoices provided by his company or business are so unreliable that I cannot be satisfied on any standard that they represent work done or time spent and should be given no weight. 423 Therefore, I have been in a position to make any findings about: 1. The need for the repairs or maintenance. 2. Whether the cause of any defects or damage was a lack of maintenance or attention or was something entirely out of the strata company's hands. 3. Whether the strata company knew of the defects or need for repair, and what they did about it. 4. Whether the effect of any defects and damage was to common areas such that Mr Kamil's business suffered, or may have suffered, or that he, his staff and his patrons were at any risk, in any way. 5. Whether the action he took, if he took any, was necessary for the mitigation to the loss on his business or his own or his staffs' or patrons' safety, and, if so, what that loss might have been. 424 Not only do the invoices not support that work was done or costs incurred, neither was he specific about work and costs in his evidence, as Mr Kamil's case largely rested on the invoices themselves. 425 Given these factors, it is my view that Mr Kamil could not be relied on in relation to the work he says he did, the costs he says he incurred, the mitigation his business required or the impact on him or his business. Neither could the notations in his invoices or messages to the strata managers be relied on for that purpose, for the reasons I have identified. 426 There are some third-party invoices that do provide for specific work done, however, they are either not clear on whether the work was performed on common property and, if so, how the work required illustrates a breach by the plaintiff of their duties under the Act. -- 91 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 92 427 In my view, these factors strongly support a finding that while some work may have been done, I cannot be satisfied Mr Kamil knows the precise nature of the work, the cost of the work, when the work was done or whether the work was done solely to common property. 428 While it was also the case that there was some correspondence between Mr Kamil and the strata managers, I am not satisfied that I can accept from that correspondence a notification of the need for repairs on the whole, or such a breakdown in communication that no messages were getting through. If even some of the items occurred as Mr Kamil says they did, it may be that the strata company needed to either commit funds to the total overhaul of the building, or a better mechanism for dealing with urgent matters. However, that does not mean that I could find, on the evidence, that the plaintiff was negligent or failed in the duties under the Act. The evidence does not rise to that level in its generality and, as it is before me, unreliability. 429 In relation to the claims of negligence and damages, Mr Kamil did give evidence of the state of the building, and the City of Perth and WorkSafe do not issue improvement notices for no reason, so it does appear that the building was in some state of disrepair, however, I also heard of daily police incidents, the clientele of the businesses and the vandalism to the building. I am not satisfied that were there a caretaker those events would not have occurred. Neither am I satisfied that the council of owners, in the position it found itself in, according to Mr Beamish, as financially struggling, has specifically failed to maintain or repair items in a timely manner. As I have rejected Mr Kamil's evidence of the work he has done and the money he has spent, I am not satisfied from his evidence that the damage and repairs were to common property, or the proportion of any damage was to any parts of the common property. 430 Therefore, neither can I find that that the plaintiff was negligent or that the plaintiff has applied unconscionable pressure on Mr Kamil and has subsequently been unjustly enriched by any work he has done to common property. 431 I have set out my findings in relation to each claim in the Amended Consolidated Defence and Counterclaim following the Scott Schedule, which is Annexure A to these reasons. 432 None of Mr Kamil's allegations or claims succeed, in either defending the actions against him or in his counterclaims. -- 92 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 93 Orders 433 I propose to make the following orders but will hear from the parties before finalisation of those orders: CIV 3637 of 2022 1. Judgment for the plaintiff. 2. The defendant (plaintiff by counterclaim) shall pay to the plaintiff (defendant by counterclaim): (a) the sum of $136,406.80; and (b) interest. 3. The counterclaim be and hereby is dismissed. 4. The defendant (plaintiff by counterclaim) shall pay the plaintiff's (defendant by counterclaim) costs of the action, inclusive of costs of the counterclaim, including any reserved costs, to be taxed if not agreed. CIV 3478 of 2023 5. Judgment for the plaintiff. 6. The defendant (plaintiff by counterclaim) shall pay to the plaintiff (defendant by counterclaim): (a) the sum of $433,386.95; and (b) interest. 7. The counterclaim be and hereby is dismissed. 8. The defendant (plaintiff by counterclaim) shall pay the plaintiff's (defendant by counterclaim) costs of the action, inclusive of costs of the counterclaim, including any reserved costs, to be taxed if not agreed. -- 93 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 94 -- 94 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 95 -- 95 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 96 -- 96 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 97 -- 97 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 98 -- 98 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 99 -- 99 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 100 -- 100 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 101 -- 101 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 102 -- 102 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 103 -- 103 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 104 -- 104 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CLEARY DCJ [2026] WADC 72 [JM] Page 174 -- 174 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 175 -- 175 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 176 -- 176 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 177 -- 177 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 178 -- 178 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 179 -- 179 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 180 -- 180 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 181 -- 181 of 182 -- [2026] WADC 72 CLEARY DCJ [2026] WADC 72 [JM] Page 182 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. CR Associate to the Judge 14 AUGUST 2026 -- 182 of 182 --