Buzrio Pty Limited v Consumer, Trader And Tenancy Tribunal

[2009] NSWSC 937

CITATION:	Buzrio Pty Limited v Consumer, Trader And Tenancy Tribunal [No. 2] [2009] NSWSC 937 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 September 2009
JUDGMENT DATE :	9 September 2009
JUDGMENT OF:	Davies J
DECISION:	(1) The interim order made by the Consumer, Trader and Tenancy Tribunal on 25 August 2009 in Tribunal Proceedings No SCS 09/39022 be removed into this Court and quashed. (2) The Consumer, Trader and Tenancy Tribunal and any Adjudicator thereof is prohibited from entertaining any further applications or making any further orders purportedly pursuant to s 170 of the Strata Schemes Management Act 1996 in respect of or in relation to the application lodged in Tribunal Proceedings No SCS 09/12586. (3) The orders may be entered forthwith.
CATCHWORDS:	ADMINISTRATIVE LAW - Consumer, Trader and Tenancy Tribunal - Strata Schemes Management Act - Owner's Corporation - application for interim order for appointment of Strata Manager - ex parte application - lot owners not notified - denial of procedural fairness - interim order beyond jurisdiction.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001 Strata Schemes Management Act 1996 Supreme Court Act 1970
CASES CITED:	Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836 Craig v South Australia (1995) 184 CLR 163 Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 Esho v Parole Board Authority of NSW [2006] NSWSC 304 R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 R v North ex parte Oakey [1927] 1 KB 491
PARTIES:	Buzrio Pty Limited (Plaintiff) Consumer, Trader And Tenancy Tribunal (First Defendant) Axiom Property Consulting Pty Limited (Second Defendant) James Chan (Third Defendant) The Owners Corporation of Strata Plan 75633 (Fourth Defendant)
FILE NUMBER(S):	SC 30080/2009
COUNSEL:	J Knackstredt (Plaintiff) Submitting appearance (First Defendant) N Potts (Second Defendant - Submitting Appearance) Submitting Appearance (Third Defendant) No appearance (Fourth Defendant)
SOLICITORS:	McLachlan Thorpe Partners Lawyers (Plaintiff) Crown Solicitor's Office (First Defendant) Dominic Sisinni & Co (Second Defendant) Submitting Appearance (Third Defendant) No appearance (Fourth Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

WEDNESDAY 9 SEPTEMBER 2009

30080/09 BUZRIO PTY LIMITED V CONSUMER, TRADER AND TENANCY TRIBUNAL & 3 ORS [NO. 2]

JUDGMENT

1 The Plaintiff, Buzrio Pty Limited, was the original developer of a block of strata units at 88-98 Marsden Street, Parramatta and still retains 20 units in the strata plan.

2 The Plaintiff seeks the following relief:

(1) A declaration that the purported decision made by the Consumer, Trader and Tenancy Tribunal on 25 August 2009 in Tribunal Proceedings Number SCS 09/39022 is void.

(2) An order in the nature of certiorari that the purported decision made by the Consumer, Trader and Tenancy Tribunal on 25 August 2009 in Tribunal Proceedings No. SCS 09/39022 be quashed.

(3) An order in the nature of prohibition, preventing the Consumer, Trader and Tenancy Tribunal from making any further orders purportedly pursuant to s 170 of the Strata Schemes Management Act 1996 in respect of or in relation to the application lodged in Tribunal Proceedings No. SCS 09/12586.

3 These proceedings are closely related to proceedings which were heard by Rothman J and in respect of which judgment was given on 21 August 2009: Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836. It is convenient, therefore, to set out the background as Rothman J summarised it:

“[7] Buzrio purchased and developed the Property and commenced selling units in the Property in about 2003. The initial sales of units were sales “off-the-plan”. Major construction at the Property concluded in about April 2004 and the Property was converted into strata title on or about 27 December 2005.

[8] On 10 January 2006, the Owners Corporation appointed True Strata as the strata manager. By 31 August 2006, one third or more of the units in the Property had been sold and True Strata gave notice of an inaugural Annual General Meeting of the Owners Corporation. In accordance with that notice, the inaugural AGM was held on 21 September 2006, and it confirmed the appointment of True Strata as the strata manager of the Property. By letter dated 14 February 2007, True Strata gave notice that they would no longer be practising as a strata manager and tendered their resignation. It seems that resignation was tendered to each of the lot owners at the Property. At the same time as tendering their resignation, True Strata purported to call an extraordinary general meeting for 1 March 2007, the agenda for which was the acceptance of the termination of the services of True Strata and the appointment of another strata manager, nominated by True Strata.
[9] On or about 23 February 2007, there was a meeting of Mr Chan, Ms Jenner Chan and Mr Paul Gonsior. At this time, Mr Chan was the secretary of the Owners Corporation. Mr Chan described this meeting as an Executive Committee meeting, although Mr Gonsior was, he says, unaware of its status as such. That purported Executive Committee meeting resolved that True Strata was not performing its duties and obligations, accepted the resignation of True Strata and purported to appoint Axiom as a temporary strata manager, at least until such time as a strata manager could be appointed by the Tribunal. The meeting also purported to appoint a solicitor to lodge an application to the Tribunal for the appointment of a strata manager and to make submissions in support thereof. Ms Jenner Chan was and is a director of Axiom and the licensee in charge of its strata management activities.
[10] It is unnecessary for the Court to detail the disputes between the lot owners and the complaints about the management of the Property by True Strata, or the later complaints about Axiom. It is notorious that there are differences of interest between developers, who continue to hold units in a residential block, and the owners who have, generally, purchased units from them. None of the details of those complaints are relevant to the determination of the issues in these proceedings.
[11] On 26 February 2007, Mr Chan wrote to the lot owners cancelling the Extraordinary General Meeting that had been called by True Strata. After a series of telephone conversations between Mr Gonsior and Mr Chan, Mr Gonsior called a meeting of the Executive Committee, by e-mail, purportedly with the authorisation of Mr Chan, and the Executive Committee purported to meet on the same day, 23 March 2007. During the course of the meeting, Mr Gonsior spoke to Mr Chan by telephone, during which conversation Mr Chan indicated that he was not interested in attending the meeting. On 26 March 2007, Mr Chan wrote to the members of the Executive Committee informing them that, contrary to the advice they had received, he had not authorised the calling of an Executive Committee meeting on 23 March 2007, or at all.
[12] On the same day as the Executive meeting, 23 March 2007, Mr Chan lodged an application with the Tribunal for the appointment of a compulsory strata manager for the Property. On 29 March 2007, the Tribunal sent a letter to Mr Chan and to the Owners Corporation inviting submissions on the application lodged by Mr Chan. The evidence clearly indicates, and/or the only inference available, is that these were the only two notices, sent by the Tribunal, inviting submissions on the application of Mr Chan.
[13] On 23 May 2007, the Tribunal made orders appointing Axiom as compulsory strata manager for the Property, for a period of 12 months (the first Tribunal decision). On 31 May 2007, Axiom wrote to the Tribunal requesting that the orders made on 23 May 2007 be amended. On 8 June 2007, the Tribunal amended the orders of 23 May 2007, the effect of which was to extend the period of compulsory strata management from 12 months to 2 years.
[14] On 12 June 2007, Buzrio and other lot owners were advised for the first time that Axiom had been appointed compulsory strata manager of the Property. This advice came from Axiom. On 29 June 2007, Axiom sent the lot owners a copy of the orders made by the Tribunal on 23 May 2007.
[15] On 26 July 2007, Buzrio lodged an application in the Tribunal seeking to have the first Tribunal decision set aside. There was some correspondence between some lot owners and the Tribunal complaining about the process for the appointment of Axiom. Axiom had fixed strata levies and, it seems, Buzrio had not paid the levies. Axiom commenced proceedings to recover the levies from Buzrio and there was correspondence between the parties.

[16] On 31 March 2008, Buzrio lodged an application in the Tribunal for the revision of the strata levies that had been imposed by Axiom. On 8 April 2008, according to Buzrio, it learnt, for the first time, that Axiom’s term as the compulsory strata manager had been extended to a term of two years. On 19 May 2008, Buzrio consented to the dismissal of its Tribunal application of 26 July 2007, referred to in [15] above. On 12 September 2008, the Tribunal dismissed Buzrio’s application of 31 March 2008. There were further disputes between Buzrio and Axiom concerning unpaid levies. On 23 January 2009, Axiom obtained judgment against Buzrio for unpaid levies.

[17] The proceedings in this Court were heard, initially, on 12 and 13 March 2009. During the course of those proceedings, Axiom produced in the Court an application by Mr Chan to the Tribunal, dated 12 March 2009 (Exhibit 3), being a substantive application for the reappointment of Axiom as the strata manager. Buzrio filed submissions in opposition to the application. Those submissions were filed on or about 21 April 2009. Axiom, Mr Chan, the Owners Corporation, and 56 lot owners also filed submissions to the Tribunal in relation to that application. On 14 May 2009, Buzrio, through its solicitors, fortuitously learnt that an application had been made for an interim order. On or about 15 May 2009, Buzrio’s solicitors requested the Tribunal to allow Buzrio the opportunity to provide submissions and be heard in relation to the interim application. On the same day, the Tribunal informed them that the file had been closed and interim orders had already been made.

[18] Buzrio’s solicitor applied to have the substantive application, filed on 12 March 2009, referred from the Adjudicator to the Tribunal. The Adjudicator referred the matter to the Tribunal and, at the same time, made an interim order, or a further interim order, appointing Axiom as compulsory strata manager.

[19] As earlier stated, there is little dispute as to the facts. The foregoing is relatively uncontroversial. Controversy exists as to the fairness and equity of levies and the confidence of either one or both of the strata managers. Those matters are not relevant to these proceedings. There is some controversy as to the notice given to lot owners of the application to the Tribunal for the appointment of a strata manager, and the notice given of the application, or correspondence, seeking to extend that appointment for a further 12 months. It seems that there is much, even on these issues, that is relatively uncontroverted. The controversy turns on the notice given, and the means by which that notice was given, and turns on the evidence of Mr Chan.”

4 His Honour went on to consider the evidence of witnesses called, including Mr Chan, and then said:

“[26] … I consider that Mr Chan gave evidence that he considered suited the case presented by Axiom and I do not accept his evidence, unless otherwise corroborated by independent acceptable evidence. I make clear that I also do not accept Mr Chan’s evidence as to notice to lot owners of the original application and the excuse he gave for not serving the full application on each of them.

[27] The effect of Mr Chan’s actions was that he made the application in a personal capacity, received notice of the application as secretary of the Owners Corporation and kept from other lot owners the fact of the application and/or its contents.”

5 The interim order made on 14 May 2009 was in the following terms:

“Pursuant to s 162(1)(a) and s 162(2)(a) the current strata managing agent, Axiom Property Consulting Pty Limited be appointed as strata managing agent to Owners Corporation SP 75633 from 24 May 2009 until such time as the substantive Application for an Order by an Adjudicator (SCS 09/12586) is determined.”

6 The order of 15 June 2009 was in the following terms:

1. On 12 June 2009, pursuant to s 164(1)(c) of the Strata Schemes Management Act 1996, the Adjudicator refers to the Tribunal, application SCS 09/12586, for hearing.

2. I order that the transfer of the application to the Tribunal be expedited by the Registrar.

3. The interim order made on 14 May 2009 in application SCS 09/22490 appointing Axiom Property Consulting Group Pty Limited as compulsory strata manager until such time as the substantive proceedings have been determined is extended until further order by the Tribunal.”

7 Rothman J then determined the issue of procedural fairness in the circumstances of the making of the orders saying this:

“[34] The clear purpose of the provisions of s 135 and s 136 of the SSM Act is to ensure that lot owners (assuming their name appears on the strata roll) are given the opportunity to make submissions in relation to any application for an order in relation to their property. The lot owners at the Property, including Buzrio, were denied that opportunity. A person whose rights will be adversely affected, by the determination of a tribunal, is entitled to be informed of the application and given the opportunity to contest it, unless the statute conferring power on the Tribunal provides otherwise by express words of necessary intendment: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598, per Mason CJ, Deane and McHugh JJ. Buzrio has been denied procedural fairness by the Tribunal in relation to the first Tribunal decision. Buzrio was not given notice of the application, nor was it provided with an opportunity to contest the application, or to prepare or to present their case or submissions in opposition to it. That is also the case in relation to the second Tribunal decision and the third Tribunal decision. In each case, Buzrio and others have been denied procedural fairness.

…

[48] … Further, the making of an interim order in urgent circumstances does not relieve the Tribunal of the rules of natural justice. The circumstances may be so urgent that ex parte orders are appropriate, but it would be incumbent, in those circumstances, for the Tribunal to give interested parties an opportunity, within a reasonable period, to address the Tribunal on the continuation of such an order. The last matter is not one which it is necessary to decide finally. No other matter would warrant the Court refusing appropriate orders.”

8 Rothman J also said this about the interim orders:

“[46] …There is no reason why these orders should not be quashed. The limitations imposed by legislation on courts and tribunals, other than a superior court of record, have the effect that an order made beyond power is invalid and ineffective. The proper course is to ensure compliance with the relevant legislative scheme. The application is now before the Tribunal (as distinct from an Adjudicator) and it is for the Tribunal to determine what, if any, interim orders should be made, assuming, without deciding, that the Tribunal has power to make interim orders.”

9 Rothman J’s judgment was delivered on 21 August 2009, a Friday. On 24 August 2009 (the following Monday) James Chan, the third Defendant in these proceedings and in the proceedings before Rothman J, lodged another application with the Tribunal as follows:

“Pursuant to s 162(1)(a) and s 162(2)(a) the Strata Managing Agent, Axiom Property Consulting Pty Ltd be appointed as Strata Managing Agent to Owner Corporation SP 75633 for a period of 3 months or until the substantive application is determined by the Tribunal, whichever is the sooner.”

10 Mr Chan attached to his application paragraphs 37 to 49 of Rothman J’s judgment. Despite what Rothman J clearly said in para 46 of his judgment about the absence of power of an adjudicator to make an interim order while the application was before the Tribunal and despite what was said in para 48 about the need for notice, a strata scheme Adjudicator, C. Paull, on 25 August 2009 made an order in the terms requested by Mr Chan without any notice being given as required by ss 135 and 136 Strata Schemes Management Act. It is that order in respect of which the relief is now sought by the Plaintiff.

11 On 31 August 2009 Paul Gonsior, a member of the Executive Committee of the Owner’s Corporation, forwarded a letter to Mr Chan enclosing a requisition for the calling of an extraordinary general meeting of the Owner’s Corporation on 11 September 2009. The requisition was said to have been signed by the requisite proportion of Lot owners and included 3 draft resolutions associated with the appointment of a new strata managing agent.

12 The making of the interim order and the calling of that meeting led to an urgent application to Rothman J to permit the Plaintiff to reopen the proceedings which had been before him to seek orders quashing the interim order made 25 August 2009. The matter came before Rothman J on 2 September 2009 and his Honour determined that he should not reopen the proceedings in which he had given judgment but should make all necessary orders to enable fresh proceedings to be heard as a matter of urgency. He made various orders concerning short service on the Defendants who were the Tribunal, Axiom Property Consulting Pty Ltd, James Chan, and the Owners Corporation of Strata Plan 75633. Order 5 was that the Summons in these proceedings was to be listed for hearing before the Duty Judge at 10:00am on 7 September 2009. His Honour also said:

“My expectation, and I make this clear, is that on 7 September the Court will hear any application for interlocutory relief associated with the summons.”

13 It was in those circumstances that the proceedings were before me on 7 September 2009 for hearing. There was no appearance for the Tribunal. Initially, Mr Sisinni, solicitor, appeared for Axiom and indicated that Axiom would be filing a Submitting Appearance. Mr Sisinni also mentioned the appearance of Mr James Chan and indicated that he also would be filing a Submitting Appearance. Submitting Appearances for those two parties were handed up during the course of the day. A Mr Kit Man Chan, who informed me that he was a Director of the Owner’s Corporation, sought leave to appear on behalf of the Owner’s Corporation. He sought an adjournment of the proceedings to enable the Owner’s Corporation to obtain legal advice, saying that the Owner’s Corporation had only been served with the documents on Friday, 4 September 2009.

14 Contrary to what Mr Kit Man Chan told me, there was evidence of service of the Owner’s Corporation on 2 September 2009 by Nicola Craven, the solicitor for the Plaintiff. In addition, and pursuant to orders made by Rothman J on 28 August in Chambers, the Owner’s Corporation was served on 28 August by service on Axiom in accordance with Rothman J’s order.

15 I declined to permit Mr Kit Man Chan to appear on behalf of the Owner’s Corporation and I declined to adjourn the proceedings. My reasons are as follows:

(a) The ordinary rule is that a company should appear to defend proceedings by a solicitor;

(b) The Court of Appeal in Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 discussed the matter of lay advocates appearing in court, albeit in the context of an unrepresented litigant in person. Stein JA, writing for the Court, said:

“[82] The authorities however suggest that higher courts should be very chary at giving leave. …

[83] What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.”


(c) It did not seem to me that the Owner’s Corporation was in any event the appropriate contradictor for the proceedings. Rather, one would have expected Mr James Chan and/or Axiom to take the active role in defending the proceedings, as Axiom had done in the proceedings before Rothman J.

(d) There was clear evidence that the Owner’s Corporation had been served by no later than 2 September 2009 with documents including the Judgment/Order setting out Rothman J’s orders and directions including the order that the proceedings were to be listed for hearing before the Duty Judge on 7 September 2009. Further, there was evidence that the Owner’s Corporation had been served by the service on Axiom on 28 August 2009 in accordance with Rothman J’s order. In those circumstances the Owner’s Corporation had adequate time to seek legal advice about the hearing scheduled for 7 September.

(e) There was a sufficient urgency that the hearing should take place on 7 September as Rothman J had directed bearing in mind the date fixed for the meeting. If the interim order remained in place it would prevent the General Meeting from appointing any Strata Manager it might decide to appoint.

(f) The prima facie strength of the Plaintiff’s case.

16 When the matter finally came on for hearing at 2:00pm on 7 September 2009, Mr Potts of counsel was present on behalf of Axiom as was Mr Kit Man Chan. My views on granting leave to Mr Kit Man Chan to appear for the Owner’s Corporation were made clear and I gave Mr Potts the opportunity of addressing me on that and other matters more generally despite the Submitting Appearance of his client because of the obvious close relationship between Axiom and the Owner’s Corporation.

17 The Plaintiff submits that the interim order of 25 August 2009 is invalid and ought to be quashed. First it is said that there was no power in the Adjudicator to make the order because the application to appoint Axiom as a Strata Managing Agent under s 162 of the Strata Schemes Management Act is before the Tribunal, having being referred to the Tribunal under s 164. In this regard, Rothman J held at [46]:

“The application is now before the Tribunal (as distinct from an Adjudicator) and it is for the Tribunal to determine what, if any, interim orders should be made, assuming, without deciding, that the Tribunal has power to make interim orders.”

18 The Plaintiff further supports this by what appears in s 170(5) that provides:

“(5) An interim order may be made or renewed even if:

(a) an Adjudicator proposes to refer the application to the Tribunal.”
That sub-section, when read together with s 184(1) suggests that the scheme of the Act is that if the Adjudicator proposes to refer the application to the Tribunal, the interim order is made by the Adjudicator immediately before such referral.

19 The Adjudicator had no power to grant the interim order in the face of Rothman J’s holding since the application was before the Tribunal and had not been determined.

20 The Plaintiff further submits that it was denied procedural fairness in relation to the application of 24 August. The evidence from both Mr Selim, the Managing Director of the Plaintiff and Nicola Craven, the solicitor for the Plaintiff was that the first they became aware of the application of 24 August and the order of 25 August was when Ms Craven received a copy of the order and faxed it to Mr Selim.

21 It is very difficult to see what the urgency was in applying for the interim order on an ex parte basis on 24 August. It cannot have been because it was necessary for a Strata Managing Agent to be appointed ex parte because the order was only that Axiom be appointed from 4 September 2009. There is no requirement in the Strata Schemes Management Act that requires at all times there be a managing agent appointed.

22 In any event, it is not apparent why, when para 48 of Rothman J’s judgment was attached to the application, the adjudicator felt no need to take any notice of what Rothman J said concerning the giving of notice, even if, for some reason that is not clear, the application needed in the first instance to be decided ex parte. Neither is it apparent why, in the face of what Rothman J said about the lack of power of the adjudicator to make an interim order when the application under s 162 had been referred to the Tribunal under s 164, the Adjudicator thought he had jurisdiction to make the interim order.

23 At common law it was not clear if certiorari would go in respect of a breach of what were then called the rules of natural justice including what is now understood as the right to procedural fairness but there was some authority to that effect: R v North ex parte Oakey [1927] 1 KB 491; R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299. However, the High Court’s decision in Craig v South Australia (1995) 184 CLR 163 did not seem to include a denial of procedural fairness as a basis for obtaining certiorari – see at 179.

24 In Esho v Parole Board Authority of NSW [2006] NSWSC 304 Rothman J said, applying common law principles, at [30]:

“There are four essential grounds for the grant of certiorari being: jurisdictional error; denial of natural justice; fraud; and error of law on the face of the record. There are nice questions as to whether a denial of natural justice is, in any event, a jurisdictional error, but the question is of academic interest only, in a case such as this where no privative clause exists.”

25 This problem has, however, been dealt with by statute as far as the present case is concerned. Under the Dictionary in the Strata Schemes Management Act “Tribunal” is said to mean the Consumer, Trader and Tenancy Tribunal established by the Consumer, Trader and Tenancy Tribunal Act 2001.

26 Section 65 of that Act relevantly provides:

“(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:


(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or
(c) an injunction,


in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2) …
(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness.”

27 The affect of s 65(3)(b) is to make clear that whatever the doubtful position was at common law a denial of procedural fairness in relation to an order of the Tribunal is a ground on which orders in the nature of prohibition and certiorari can be made.

28 In my opinion the Plaintiff is entitled to an order in the nature of certiorari for the two reasons referred to in s 65(3). First, the adjudicator on behalf of the Tribunal has purported to exercise a jurisdiction that he did not have, namely to make an interim order when the application for the appointment of the Strata Manager had been referred to the Tribunal. In common law terms this could be characterised as an error of law on the face of the record. Further, since the reasons for the decision refer to the fact that the substantive application is before the Tribunal the error of law on the face of the record is patent. Section 69(4) Supreme Court Act 1970 makes it clear that the face of the record includes the reasons expressed by the Tribunal. Secondly, the order should be quashed for the failure of the Tribunal to observe procedural fairness.

29 In my opinion, the interim order was made without jurisdiction and was also made without observing the rules of procedural fairness. The decision should be quashed.

30 The Plaintiff further seeks an order in the nature of prohibition against the Tribunal and bases the claim on two matters. The first is the general conduct of Axiom and James Chan that led not only to these proceedings but also the proceedings before Rothman J.

31 This included the fact that after Rothman J reserved his decision at the conclusion of the hearing Axiom wrote, purportedly on behalf of the Owner’s Corporation to the Registrar of the Tribunal, saying (inter alia):

“We are informed that one of the issues raised which gave his Honour Justice Rothman some cause of concern in the Supreme Court proceedings … was the duration of the interim order made by Strata Scheme Adjudicator Bordon on 14 May 2009 and its carry over affect (sic) in the orders of Strata Scheme Adjudicator Dixon made 15 June 2009.

…

We would request the Adjudicator to correct the order under s 171(2) to read:

‘Pursuant to s 162 of the Strata Schemes Management Act 1996 Axiom Property Consulting Pty Limited is appointed Strata Managing Agent to SP 75633 to exercise all the functions of the Owner’s Corporation from 24 May 2009 to 23 August 2009 or until such time as the substantive application SCS 09/12586 is determined, whichever is the sooner.’”

32 This was a reference to the fact that the interim order of 14 May and the order of 15 June 2009 purported to appoint Axiom “until such time as the substantive proceedings have been determined” when s 170(6) had a 3 month limitation period on such an order.

33 It also particularly includes the fact that 3 days after the judgment of Rothman J, and in the face of what he had said in his judgment, James Chan made further application to the Tribunal for another interim order and did so without the notice to the Lot owners or anybody else that was required to be given notice and that Rothman J had held was to be given notice.

34 Secondly, the Plaintiff says that if the Tribunal is not prohibited from making any further orders relating to the application already before the Tribunal itself it, or an Adjudicator on its behalf, may make further orders necessitating further applications to this Court. I agree. The history of the orders made and the way they have been made, especially the interim order of 25 August 2009, point strongly to the fact that the Tribunal may well make further orders in excess of jurisdiction and without regard to the need to observe procedural fairness.

35 In my opinion, the behaviour of Axiom and James Chan in particular, and the willingness of the Tribunal to make orders contrary to what this Court has held limits its power justifies the order in the nature of prohibition sought by the Plaintiff.

36 In my opinion, the following Orders should be made:

(1) The interim order made by the Consumer, Trader and Tenancy Tribunal on 25 August 2009 in Tribunal Proceedings No SCS 09/39022 be removed into this Court and quashed.

(2) The Consumer, Trader and Tenancy Tribunal and any Adjudicator thereof is prohibited from entertaining any further applications or making any further orders purportedly pursuant to s 170 of the Strata Schemes Management Act 1996 in respect of or in relation to the application lodged in Tribunal Proceedings No SCS 09/12586.

(3) The orders may be entered forthwith.

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10/09/2009 - "[No. 2]" added to the title on both the coversheet and page 1 of the judgment. - Paragraph(s) Title