Catzel v The Owners, Strata Plan 468 - [2011] NSWSC 370

Supreme Court

New South Wales

Medium Neutral Citation: CATZEL v THE OWNERS, STRATA PLAN 468 [2011] NSWSC 370
Hearing dates: Friday 29 April 2011
Decision date: 05 May 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) The summons commencing an appeal filed on 3 November 2010 is dismissed.
(2) In accordance with the costs follow the event rule, the plaintiff is to pay the defendant's costs of and incidental to the proceedings.

Catchwords: PROPERTY LAW - Authority of Owners Corporation to take legal action to recover outstanding levies - failure to pay levies contra to Strata Schemes Management Act - defence struck out at Local Court - denied permission to amend or re-plead defence - whether applicant denied procedural fairness - whether commencement of legal action by Owners Corporation valid - whether Magistrate justified in determining proceedings relating to the commencement of legal action where "no evidence" is before the Court - appeal proceedings limited to the question of costs pursuant to s.80D - liability for principal sum admitted - breach of procedural fairness - no disadvantage from the alleged failure to permit plaintiff to re-lead a defence
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 1987
Strata Schemes Management Act 1996
Strata Schemes Management Regulation 2005
Cases Cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
The Owners - Strata Plan No 36131 v Dimitriou (2009) 74 NSWLR 370
Category: Principal judgment
Parties: RYAN CATZEL v THE OWNERS, STRATA PLAN 468
Representation: Counsel:
P: N Eastman
D: D Radman (Sol)
Solicitors:
P: Charles G Roth
D: Grace Lawyers Pty Limited

File Number(s): 2010/365580

Judgment

HALL J: This appeal was commenced in this Court by way of Summons filed on 3 November 2010. The proceedings are by way of appeal from the decision of her Honour, Magistrate O'Shane of the Downing Centre Local Court on 1 October 2010.

The action in that Court concerned the failure of the plaintiff (the defendant in the proceedings below) to pay certain levies to the Owners Corporation in relation to the unit owned by the plaintiff in a unit complex in Bellevue Hill.

The plaintiff purchased that property on or about 26 April 2002. He ceased paying levies on 1 February 2008.

After a period of (unsuccessful) correspondence, the defendants in these proceedings commenced an action in the Local Court by Statement of Claim filed on 10 February 2010. The claim was for principal and interest and totalled, at that time, $27,969.33. An Amended Statement of Claim was filed on 14 April 2010 which sought the recovery of a fixed sum of levies, interest and costs incurred up to and including 14 April 2010.

A Defence was filed on 24 February 2010 in respect of the first Statement of Claim. No amendment was made to the Defence prior to the hearing before Magistrate O'Shane which commenced on 14 September 2010 and which reconvened and concluded on 10 October 2010.

However, I note that a document was filed…

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.

Keep reading for free

Create a free CaseChat account to read Catzel v The Owners, Strata Plan 468 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 370
Decision Date: 05 May 2011

CaseChat Overview and Summary

In this matter, the applicants, owners of a strata lot, were sued by the defendant Owners Corporation to recover unpaid levies. The dispute was heard and dismissed by a Magistrate of the Local Court of New South Wales, and the applicants appealed to the Supreme Court of New South Wales. The applicants argued that the Owners Corporation lacked authority to bring the proceeding, and that the Court lacked the jurisdiction to hear the case as the plaintiff had not followed the necessary procedures. The applicants further claimed that the Court denied them procedural fairness when it refused their application to amend their defence.

The court was required to decide whether the Owners Corporation had the authority to commence legal proceedings to recover unpaid levies, and whether the Court had jurisdiction to hear the case. The court also needed to determine whether the applicants were denied procedural fairness when their application to amend their defence was refused. The court had to consider whether the refusal to permit the applicants to re-plead their defence caused them any disadvantage.

The Supreme Court of New South Wales found that the Owners Corporation had the authority to commence legal proceedings to recover unpaid levies. The Court also found that it had jurisdiction to hear the case, despite the lack of evidence. The court held that the applicants were not denied procedural fairness when their application to amend their defence was refused. The court found that the refusal did not cause the applicants any disadvantage as they admitted liability for the principal sum. The appeal was limited to the question of costs pursuant to s.80D, and the liability for the principal sum was admitted. The Supreme Court of New South Wales remitted the proceedings to the Local Court for the assessment of costs.

Orders