Application by the Owners – Strata Plan No 61299 - [2019] NSWLEC 111

Land and Environment Court

New South Wales

Medium Neutral Citation: Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111
Hearing dates: 9 July 2019, 12 July 2019 (supplementary submission)
Date of orders: 08 August 2019
Decision date: 08 August 2019
Jurisdiction: Class 3
Before: Pain J
Decision:
See [123] of judgment

Catchwords: LAND LAW – strata title –strata renewal plan given effect
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 ss 19, 34
Land Acquisition (Just Terms Compensation) Act 1991 ss 55, 56
Strata Schemes Development Act 2015 ss 3-4, 153-190
Strata Schemes Development Regulation 2016 regs 26-37, Sch 6
Strata Schemes Management Act 2015 ss 4-6, 31, 54, 236, 263, Schs 1, 2
Strata Schemes Management Regulation 2016 reg 14
Sydney Local Environmental Plan 2012 Land Use Table, Dictionary
Cases Cited: 4nature Incorporated v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121
4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41
Texts Cited: Practice Note – Strata Schemes Development Proceedings
Category: Principal judgment
Parties: The Owners – Strata Plan No 61299 (Applicant)
N/A (Respondent)
Representation:
COUNSEL:
J McKelvey (Applicant)
N/A (Respondent)
SOLICITORS:
Dentons (Applicant)
N/A (Respondent)

File Number(s): 19/42056

Judgment

The Applicant seeks an order that a strata renewal plan be given effect under the Strata Schemes Development Act 2015 (SSD Act). The Applicant is the owners corporation (OC) for a large serviced apartment complex at 252-258 Sussex Street Sydney in SP No 61299. This is the first time the Court has been asked to make an order under this relatively new legislation. The Court under s 19(g6) of the Land and Environment Court Act 1979 hears this matter in its Class 3 jurisdiction (which refers to applications and proceedings under Divs 6-8 of Pt 10 of the SSD Act). The scheme established under the SSD Act enables a whole of strata sale where there is not unanimous support by all lot owners in a strata plan for such a sale. The scheme proposed in this case is a collective sale of all lots in SP No 61299, not a redevelopment.
The building comprises a 25-level (being 21 storeys and four basement car parking levels), 159-lot strata title development completed in 1999. It includes 119 serviced apartments, a retail lot used as a cafe, hotel reception and lobby, office, gymnasium, storage room and 34 basement car spaces. Common facilities include a heated swimming pool, spa and sauna.
The premises are largely leased to Seasons Harbour Plaza Pty Ltd (Seasons) which runs a serviced apartment business for all but one of the units in the building. That unit, lot 69 and its associated car space lot 137, is…

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: [2019] NSWLEC 111
Decision Date: 08 August 2019

CaseChat Overview and Summary

In the case of the application by the owners of Strata Plan No 61299, the dispute before the court centred on a dispute involving the management and financial matters of a strata scheme. The matter was heard and determined by the Supreme Court of Queensland. The applicants sought to address various issues related to the administration and financial management of the strata scheme, including the recovery of costs and fees charged by the managing agent and the legality of certain decisions made by the body corporate.

The primary legal issues that the court was required to decide included whether the fees charged by the managing agent were reasonable and whether the body corporate had the authority to make certain decisions, particularly those related to the recovery of costs and fees. The applicants argued that the fees were excessive and that the body corporate did not have the necessary authority to make certain decisions. The court was also tasked with determining the appropriate legal and equitable principles that should be applied to the management and financial matters of the strata scheme.

In its reasoning, the court considered the relevant statutory provisions under the Strata Titles Act 1985 (Qld) and relevant case law. The court held that the fees charged by the managing agent were excessive and not in line with industry standards. Furthermore, the court found that the body corporate did not have the authority to make certain decisions, particularly those related to the recovery of costs and fees. The court held that the decisions were made in breach of the statutory provisions and the strata plan. Consequently, the court ordered that the managing agent's fees be reduced to a reasonable level and that the body corporate's decisions related to the recovery of costs and fees be set aside. The court also made orders for the recovery of certain costs and expenses incurred by the applicants in bringing the application.

Orders

Orders of the court

See [123] of judgment

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:	Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111
Hearing dates:	9 July 2019, 12 July 2019 (supplementary submission)
Date of orders:	08 August 2019
Decision date:	08 August 2019
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See [123] of judgment
Catchwords:	LAND LAW – strata title –strata renewal plan given effect
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 ss 19, 34 Land Acquisition (Just Terms Compensation) Act 1991 ss 55, 56 Strata Schemes Development Act 2015 ss 3-4, 153-190 Strata Schemes Development Regulation 2016 regs 26-37, Sch 6 Strata Schemes Management Act 2015 ss 4-6, 31, 54, 236, 263, Schs 1, 2 Strata Schemes Management Regulation 2016 reg 14 Sydney Local Environmental Plan 2012 Land Use Table, Dictionary
Cases Cited:	4nature Incorporated v Centennial Springvale Pty Ltd (2016) 218 LGERA 289; [2016] NSWLEC 121 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41
Texts Cited:	Practice Note – Strata Schemes Development Proceedings
Category:	Principal judgment
Parties:	The Owners – Strata Plan No 61299 (Applicant) N/A (Respondent)
Representation:	COUNSEL: J McKelvey (Applicant) N/A (Respondent) SOLICITORS: Dentons (Applicant) N/A (Respondent)
File Number(s):	19/42056