Application by the Owners – Strata Plan No 61299 (No 2) - [2019] NSWLEC 154

Land and Environment Court

New South Wales

Medium Neutral Citation: Application by the Owners – Strata Plan No 61299 (No 2) [2019] NSWLEC 154
Hearing dates: 23 October 2019, 24 October 2019 (written submissions)
Date of orders: 28 October 2019
Decision date: 28 October 2019
Jurisdiction: Class 3
Before: Pain J
Decision:
See [15] of judgment

Catchwords: JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered
Legislation Cited: Civil Procedure Act 2005 s 98
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979 s 19
Land and Environment Court Rules 2007 r 3.7
Strata Schemes Development Act 2015 Pt 10
Uniform Civil Procedure Rules 2005
Cases Cited: Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111
Croghan v Blacktown City Council [2019] NSWCA 248
Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328
Category: Consequential orders (other than Costs)
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

On 8 August 2019 I made orders giving effect to a strata renewal plan for the collective sale of a 159-lot strata scheme in a building at 252-258 Sussex Street Sydney in Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111 (SP No 61299 (No 1)). The strata renewal plan requires the 159 owners of lots in SP No 61299 to sell their lots in accordance with the deed of agreement entered into between City Hotel Enterprises Pty Ltd and the strata renewal committee annexed to the strata renewal plan. The completion of all sales must occur by 18 November 2019 under the strata renewal plan. All but one owner, the owner of lot 63 Ms Harris, has complied with these requirements. The owners corporation (OC) of SP No 61299 has exercised its liberty to apply to the Court seeking various ancillary orders which will give effect to the strata renewal plan by appointing a trustee of lot 63 in order to give effect to the sale of lot 63 inter alia. After discussion in the course of the hearing the original orders sought are to be amended.

Strata Schemes Development Act 2015

Section 186 of the Strata Schemes Development Act 2015 (SSD Act) provides for the making of ancillary orders as follows:

Part 10 Strata renewal process for freehold strata schemes
…
Division 7 Orders to give effect to strata renewal plans
…
186   Ancillary orders
(1)   The court may make an order to provide for any ancillary or consequential matter (an ancillary order) that it considers appropriate or necessary to ensure the effectiveness of the order giving effect to a strata renewal plan.
(2)   Without limiting subsection (1), an ancillary order may…

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 154
Decision Date: 28 October 2019

CaseChat Overview and Summary

The Owners of Strata Plan No 61299 applied for an order under section 102(2)(b) of the Strata Titles Act 1985 (NSW) to obtain directions for the management and maintenance of the common property, particularly regarding the repair of a leaking roof. The first application was dismissed, and the current application sought the same relief. The respondents, the body corporate of the strata plan, argued that the application was vexatious and should be dismissed under section 102(2)(e). The court had to determine whether the application was vexatious, whether the applicants had standing, and if the application was an abuse of process. The court found that the application was not vexatious or an abuse of process, and the applicants had standing to make the application. The court granted the application for directions regarding the management and maintenance of the common property. The final orders included directions for the respondents to provide information and attend a case conference to discuss the issues raised by the application.

Orders

Orders of the court

See [15] 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

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Medium Neutral Citation:	Application by the Owners – Strata Plan No 61299 (No 2) [2019] NSWLEC 154
Hearing dates:	23 October 2019, 24 October 2019 (written submissions)
Date of orders:	28 October 2019
Decision date:	28 October 2019
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See [15] of judgment
Catchwords:	JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered
Legislation Cited:	Civil Procedure Act 2005 s 98 Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 s 19 Land and Environment Court Rules 2007 r 3.7 Strata Schemes Development Act 2015 Pt 10 Uniform Civil Procedure Rules 2005
Cases Cited:	Application by the Owners – Strata Plan No 61299 [2019] NSWLEC 111 Croghan v Blacktown City Council [2019] NSWCA 248 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328
Category:	Consequential orders (other than Costs)
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