Byczko v Strata Corporation 6222 Inc

Held:

1. The proceeding in the Magistrates Court was not a minor civil action as the amount claimed exceeded $12,000 and the claim was not a minor statutory proceeding within the meaning of that term in s 3 of the Magistrates Court Act.

2. The dispute was instituted pursuant to s 41A of the Strata Titles Act 1988 (SA). Pursuant to s 48A of that Act, the application was treated as if it were a minor civil action with such modifications to the Magistrates Court Act 1991 as necessary. The action was therefore heard in the civil division of the Magistrates Court applying the procedure of a minor civil action. Section 48A was a procedural direction.

3. The consequences of treating the application as a minor civil action (and making any necessary modifications to the Magistrates Court Act) was that a review of the proceeding was to this Court. The requirement in section 48A to treat an imaginary state of affairs as real meant that the consequences of that putative state of affairs must also be treated as real: East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109 discussed.

4. The case was suitable for summary determination: Spencer v Commonwealth (2010) 241 CLR 118 and Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 applied.

5. The Corporation had established that the levies that it imposed upon all members were payable and recoverable as against Mr Byczko subject to a minor adjustment in the sum of $169.91.

6. Legal fees in the sum of $2,673.89 were recoverable by the Corporation against Mr Byzcko but the balance of the legal fees was not recoverable as they did not come within the terms of the resolution of the Corporation permitting the recovery of the fees and further were not claimable according to the rules that govern minor civil actions.

7. The interest claimed by the Corporation was calculated in accordance with s 27(4) of the Strata Titles Act 1988 and Regulation 11 of the Strata Titles Regulations 2018 (SA) and was therefore recoverable.

8. The claims for overdue fee notices and debt recovery expenses were not recoverable as they did not come within the terms of the relevant resolutions of the Corporation.

9. The judgment of the Magistrate in the sum of $19,463.92 is rescinded and in lieu thereof I substitute judgment in favour of the Corporation in the sum of $15,141.73. The judgment is otherwise affirmed.