Just a thought, this is what the NCAT fact sheet says about applying for financial penalties:
[Applicants must] attach the Tribunal order that was contravened
• Evidence includes a statement of the contravention including dates and description of activities
• Note: Evidence must be in the form a statutory declaration, affidavit or expert report as appropriate, as the rules of evidence apply in penalty proceedings.
To me, it sounds like getting a financial penalty imposed may be a higher bar to clear than seeking orders. So, if you don’t actually want a financial penalty, why burden yourself with going the extra distance and increasing that chances of failure on a technicality.
Again, seek professional advice, preferably from an experienced strata lawyer. I’m not sure that initially going for a by-law breach was the right tactic. Could have worked, but clearly didn’t.
A section 232 application covers a by-law breach in any case.
FYI, if you are seeking orders, you need to have at least attempted the mediation process first.