Bessemer v Owners of Strata Plan 6925/35054

The appeal concerned a judicial review of an order made by a judge of the District Court of New South Wales in its criminal jurisdiction. The applicant, Mr Bessemer, sought to challenge the District Court judge's decision that he lacked the power to relieve Mr Bessemer of a levy imposed by the owners corporation of his strata scheme. The dispute arose from convictions in 1993 and 1994 for contravening orders made by the Strata Titles Board. Following these convictions, Mr Bessemer was fined and ordered to pay various costs. In 2015, these convictions were annulled under section 4 of the Crimes (Appeal and Review) Act 2001 (NSW), and the original informations were dismissed. Subsequently, the owners corporation incurred legal costs in seeking advice on whether to pursue the original informations. To recover these costs, the owners corporation raised a levy on the lot owners, including Mr Bessemer.

The central legal issues before the court were whether Mr Bessemer could be relieved of this levy, and whether the District Court judge's determination that he lacked such power constituted a jurisdictional error. Specifically, the court had to consider whether relief was available under section 150 of the Strata Titles Act 1973 (NSW) or sections 229 and 230 of the Strata Schemes Management Act 1996 (NSW). The court also considered the meaning of "enforcement action" as defined in section 10(1) of the Crimes (Appeal and Review) Act 2001 (NSW).

The court reasoned that the annulment of the convictions did not retrospectively alter the fact that the owners corporation had incurred costs in seeking legal advice regarding the original informations. The levy was raised to recover these incurred costs, not as a penalty or consequence of the annulled convictions. The court found that the relevant provisions of the Strata Titles Act and the Strata Schemes Management Act did not grant the District Court judge the power to relieve a lot owner of a levy raised for the purpose of recovering legal costs incurred by the owners corporation in circumstances such as these. Therefore, the judge's conclusion that he lacked the power to grant relief was not infected by jurisdictional error.

The application for judicial review was dismissed, and Mr Bessemer was ordered to pay the costs of the appeal.