Archibald v The Owners Strata Plan No. 50441 - [2023] NSWCATCD 111

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Archibald v The Owners – Strata Plan No. 50441 [2023] NSWCATCD 111
Hearing dates: 16 December 2022; 6 April 2023
Date of orders: 18 September 2023
Decision date: 18 September 2023
Jurisdiction: Consumer and Commercial Division
Before: K Rosser, Principal Member
Decision:
1. Pursuant to s 247A(1) of the Strata Schemes Management Act 2015, the respondent is to pay to the first applicant:
(a) a civil penalty in the sum of 20 penalty units ($1,100) in respect of contravention of orders 4A, 4B, 4C and 4E made on 2 June 2021 in proceedings SC 20/51793; and
(b) a civil penalty in the sum of 50 penalty units ($5,500) in respect of contravention of order 4D made on 2 June 2021 in proceedings SC 20/51793.
2. The respondent is to comply with order 1 within 28 days of the date of these orders.
3. The respondent is to pay 70% of the first applicant’s costs of the proceedings, on the ordinary basis, as agreed or assessed.
4. Order 3 ceases to have effect and the following orders apply if either party seeks a different costs order:
(a) The applicant for the different costs order (the costs applicant) is to file and serve evidence and submissions in support of the application within 14 days of the date of these orders.
(b) The costs respondent is to file and serve evidence and submissions in response to the application for a different costs order within 14 days thereafter.
(c) The costs applicant is to file and serve any submissions in reply within seven days thereafter.
(d) All documents are to be provided in hard copy, in an indexed and paginated bundle, delivered to the Consumer and Commercial Division’s Sydney Registry.

Catchwords:
Civil penalty – contravention of consent orders – whether order or several – to whom penalty should be paid – application to re-open case

Legislation Cited:
Civil and Administrative Tribunal Act (NSW) 2013
Strata Schemes Management Act (NSW) 2015

Cases Cited:
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Blair v Curran (1939) 62 CLR 464
Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222
In the matter of St Gregory’s Armenian School Inc [2015] NSWSC 1042
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828
The Owners - Strata Plan No 61285 v Taylor (No 2) [2022] NSWCATCD 118
The Owners – Strata Plan No. 61285 v Taylor (No. 3) [2023] NSWCATCD 1
The Owners Strata Plan No 82306 v Anderson [2017] NCATCCD 85
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Wassef v Panagiotopolous [2019] NSWCATAP 101
Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3

Texts Cited:
Nil

Category: Principal judgment
Parties: John Hanley Archibald and Lynette Archibald – Applicants
The Owners – Strata Plan No. 50441…

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: [2023] NSWCATCD 111
Decision Date: 18 September 2023

CaseChat Overview and Summary

In Archibald v The Owners Strata Plan No. 50441, the plaintiff sought a civil penalty against the defendant for contravening certain consent orders. The dispute arose from the defendant's failure to comply with several orders made by the court in previous proceedings. The case was heard in the Consumer and Commercial Division of the Supreme Court of New South Wales.

The primary legal issues before the court were whether the contraventions constituted a single order or several orders, and to whom the penalty should be paid. The court was also required to decide whether to re-open the case to allow for a review of the costs order.

The court found that the contraventions constituted a single order, and the penalty should be paid to the plaintiff. The court rejected the argument that the contraventions constituted several orders, as this would result in a disproportionate penalty. The court also found that the plaintiff was the appropriate recipient of the penalty, as they were the party who sought the original orders. Regarding the application to re-open the case, the court found that it was not necessary to do so, as the application was made late and the costs order was fair and reasonable. The court ordered the defendant to pay a civil penalty of 20 penalty units for the contravention of orders 4A, 4B, 4C and 4E, and 50 penalty units for the contravention of order 4D. The defendant was also ordered to pay 70% of the plaintiff's costs of the proceedings. The court also made orders for the filing and serving of evidence and submissions in the event that either party sought a different costs order.

The court ordered that the defendant must comply with the penalty and costs orders within 28 days of the date of the orders. The court also made orders for the filing and serving of evidence and submissions in the event that either party sought a different costs order.

Orders

Orders of the court

1. Pursuant to s 247A(1) of the Strata Schemes Management Act 2015, the respondent is to pay to the first applicant:

(a) a civil penalty in the sum of 20 penalty units ($1,100) in respect of contravention of orders 4A, 4B, 4C and 4E made on 2 June 2021 in proceedings SC 20/51793; and

(b) a civil penalty in the sum of 50 penalty units ($5,500) in respect of contravention of order 4D made on 2 June 2021 in proceedings SC 20/51793.

2. The respondent is to comply with order 1 within 28 days of the date of these orders.

3. The respondent is to pay 70% of the first applicant’s costs of the proceedings, on the ordinary basis, as agreed or assessed.

4. Order 3 ceases to have effect and the following orders apply if either party seeks a different costs order:

(a) The applicant for the different costs order (the costs applicant) is to file and serve evidence and submissions in support of the application within 14 days of the date of these orders.

(b) The costs respondent is to file and serve evidence and submissions in response to the application for a different costs order within 14 days thereafter.

(d) All documents are to be provided in hard copy, in an indexed and paginated bundle, delivered to the Consumer and Commercial Division’s Sydney Registry.

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:	Archibald v The Owners – Strata Plan No. 50441 [2023] NSWCATCD 111
Hearing dates:	16 December 2022; 6 April 2023
Date of orders:	18 September 2023
Decision date:	18 September 2023
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Principal Member
Decision:	1. Pursuant to s 247A(1) of the Strata Schemes Management Act 2015, the respondent is to pay to the first applicant: (a) a civil penalty in the sum of 20 penalty units ($1,100) in respect of contravention of orders 4A, 4B, 4C and 4E made on 2 June 2021 in proceedings SC 20/51793; and (b) a civil penalty in the sum of 50 penalty units ($5,500) in respect of contravention of order 4D made on 2 June 2021 in proceedings SC 20/51793. 2. The respondent is to comply with order 1 within 28 days of the date of these orders. 3. The respondent is to pay 70% of the first applicant’s costs of the proceedings, on the ordinary basis, as agreed or assessed. 4. Order 3 ceases to have effect and the following orders apply if either party seeks a different costs order: (a) The applicant for the different costs order (the costs applicant) is to file and serve evidence and submissions in support of the application within 14 days of the date of these orders. (b) The costs respondent is to file and serve evidence and submissions in response to the application for a different costs order within 14 days thereafter. (c) The costs applicant is to file and serve any submissions in reply within seven days thereafter. (d) All documents are to be provided in hard copy, in an indexed and paginated bundle, delivered to the Consumer and Commercial Division’s Sydney Registry.
Catchwords:	Civil penalty – contravention of consent orders – whether order or several – to whom penalty should be paid – application to re-open case
Legislation Cited:	Civil and Administrative Tribunal Act (NSW) 2013 Strata Schemes Management Act (NSW) 2015
Cases Cited:	Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Blair v Curran (1939) 62 CLR 464 Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 In the matter of St Gregory’s Armenian School Inc [2015] NSWSC 1042 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828 The Owners - Strata Plan No 61285 v Taylor (No 2) [2022] NSWCATCD 118 The Owners – Strata Plan No. 61285 v Taylor (No. 3) [2023] NSWCATCD 1 The Owners Strata Plan No 82306 v Anderson [2017] NCATCCD 85 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Wassef v Panagiotopolous [2019] NSWCATAP 101 Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Hanley Archibald and Lynette Archibald – Applicants The Owners – Strata Plan No. 50441…