Akdogan v The Owners - Strata Plan No 55665 - [2025] NSWCATCD 114

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Akdogan v The Owners - Strata Plan No 55665 [2025] NSWCATCD 114
Hearing dates: 11 July 2025
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Consumer and Commercial Division
Before: Dr K M George, Senior Member
Decision:
(1) The Miscellaneous Application seeking the set aside and/or amendment of the Summons issued on 10 March 2025 is dismissed.
(2) The Summons is returnable on 26 August 2025 at 9.15 am in Chambers. Attendance is not required.
(3) A hearing regarding costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(4) The costs of this interlocutory application are to be costs in the cause of the substantive proceedings.
(5) If either party makes an application to vary order (3) and (4) above in the manner and within the time specified in order 5(a) below, order (3) and (4) above cease to have effect and the following directions apply:
(a) The party seeking to vary the orders is to lodge and serve submissions limited to three pages by 26 August 2025.
(b) The other party is to lodge and serve any submissions limited to three pages by 9 September 2025.

Catchwords:
CIVIL PROCEDURE - Summons to produce - Application to set aside and amend - Legitimate forensic purpose – privilege – whether divergent interests

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Liability Act 2002 (NSW)
Home Building Act 1989 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Bischoff v Sahade [2015] NSWCATAP 135
CPJ v The University of Newcastle [2017] NSWCATAD 350
CSR Ltd v Eddy [2002] NSWCA 83
Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853
Lonsdale v University of Sydney [2015] NSWCATAP 277
Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
The Owners – Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221
The Owners Strata Plan No 2000 v Bylinska [2019] NSWCATAP 116

Texts Cited:
Nil

Category: Procedural rulings
Parties:
Ayten Akdogan (first applicant)
Khaled Mourad (second applicant)
Jillian Dolby (third applicant)
Bronwyn Whale (fourth applicant)
Albert Ayoub (fifth applicant)
Ameen Ayoub (sixth applicant)
The Owners - Strata Plan No 55665 (first respondent)
Maria Pitney (second respondent)
Nicole Hack (third respondent)
Representation:
Mr R Hack (second respondent)
Third respondent (self-represented)

Solicitors:
Beswick Lynch Lawyers (first, second, third, fourth, fifth, sixth applicants)

Sachs Gerace Lawyers (first respondent)
Counsel:
Ms E O Jardine (first respondent )

File Number(s): 2024/00427614
Publication restriction: Nil

REASONS FOR DECISION

This is an application by the first respondent who is The Owners – Strata Plan No 55665 (“the OC”), supported by the second and third respondents, to set aside or amend a Summons to produce documents.

Background to the Dispute

The substantive dispute concerns a strata scheme in Brighton le Sands.
In March 2021 the OC resolved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATCD 114
Decision Date: 12 August 2025

CaseChat Overview and Summary

The plaintiff, Akdogan, sought to produce documents from the defendants, the owners of a strata plan, in relation to a dispute involving the ownership of a property. The defendants objected to the summons to produce, arguing that the information sought was privileged and irrelevant to the proceedings. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the court was whether the summons to produce should be set aside or amended, given the defendants' objection on the grounds of privilege and relevance. The court had to determine whether there was a legitimate forensic purpose for the documents and whether the potential prejudice to the defendants' interests outweighed the plaintiff's need for the information.

The court found that the plaintiff had a legitimate forensic purpose for seeking the documents, as they were relevant to the substantive proceedings. However, the court also considered the defendants' argument that the documents contained privileged information. The court concluded that the defendants' interests did not diverge significantly from those of the plaintiff, and therefore, the summons should not be set aside or amended. The court emphasised the importance of proportionality in determining whether a document should be produced, taking into account the potential prejudice to the defendants' interests. The court dismissed the application to set aside and amend the summons, and directed that the summons remain returnable on the specified date and time.

In its orders, the court dismissed the application to set aside and amend the summons, and directed that the summons remain returnable on the specified date and time. The court also dispensed with a hearing regarding costs and directed that the costs of the interlocutory application be costs in the cause of the substantive proceedings. The court further provided directions for any future applications to vary the orders regarding costs, specifying the time limits and page limits for submissions. Overall, the court's decision upheld the plaintiff's right to seek the documents, while also protecting the defendants' interests to the extent possible.

Orders

Orders of the court

(1) The Miscellaneous Application seeking the set aside and/or amendment of the Summons issued on 10 March 2025 is dismissed.

(2) The Summons is returnable on 26 August 2025 at 9.15 am in Chambers. Attendance is not required.

(3) A hearing regarding costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(4) The costs of this interlocutory application are to be costs in the cause of the substantive proceedings.

(5) If either party makes an application to vary order (3) and (4) above in the manner and within the time specified in order 5(a) below, order (3) and (4) above cease to have effect and the following directions apply:

(a) The party seeking to vary the orders is to lodge and serve submissions limited to three pages by 26 August 2025.

(b) The other party is to lodge and serve any submissions limited to three pages by 9 September 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Akdogan v The Owners - Strata Plan No 55665 [2025] NSWCATCD 114
Hearing dates:	11 July 2025
Date of orders:	12 August 2025
Decision date:	12 August 2025
Jurisdiction:	Consumer and Commercial Division
Before:	Dr K M George, Senior Member
Decision:	(1) The Miscellaneous Application seeking the set aside and/or amendment of the Summons issued on 10 March 2025 is dismissed. (2) The Summons is returnable on 26 August 2025 at 9.15 am in Chambers. Attendance is not required. (3) A hearing regarding costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (4) The costs of this interlocutory application are to be costs in the cause of the substantive proceedings. (5) If either party makes an application to vary order (3) and (4) above in the manner and within the time specified in order 5(a) below, order (3) and (4) above cease to have effect and the following directions apply: (a) The party seeking to vary the orders is to lodge and serve submissions limited to three pages by 26 August 2025. (b) The other party is to lodge and serve any submissions limited to three pages by 9 September 2025.
Catchwords:	CIVIL PROCEDURE - Summons to produce - Application to set aside and amend - Legitimate forensic purpose – privilege – whether divergent interests
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil Liability Act 2002 (NSW) Home Building Act 1989 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Bischoff v Sahade [2015] NSWCATAP 135 CPJ v The University of Newcastle [2017] NSWCATAD 350 CSR Ltd v Eddy [2002] NSWCA 83 Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 Lonsdale v University of Sydney [2015] NSWCATAP 277 Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 The Owners – Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221 The Owners Strata Plan No 2000 v Bylinska [2019] NSWCATAP 116
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Ayten Akdogan (first applicant) Khaled Mourad (second applicant) Jillian Dolby (third applicant) Bronwyn Whale (fourth applicant) Albert Ayoub (fifth applicant) Ameen Ayoub (sixth applicant) The Owners - Strata Plan No 55665 (first respondent) Maria Pitney (second respondent) Nicole Hack (third respondent)
Representation:	Mr R Hack (second respondent) Third respondent (self-represented) Solicitors: Beswick Lynch Lawyers (first, second, third, fourth, fifth, sixth applicants) Sachs Gerace Lawyers (first respondent) Counsel: Ms E O Jardine (first respondent )
File Number(s):	2024/00427614
Publication restriction:	Nil