Chen v The Owners - Strata Plan No. 7262 - [2022] NSWCATCD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chen v The Owners - Strata Plan No. 7262 [2022] NSWCATCD 58
Hearing dates: 29 April 2022
Date of orders: 02 May 2022
Decision date: 02 May 2022
Jurisdiction: Consumer and Commercial Division
Before: K Andronos SC, Senior Member
Decision:
(1) Pursuant to s. 188 of the Strata Schemes Management Act 2015 (NSW) the Respondent is to permit the Applicants to inspect the following documents at the offices occupied by Mr Geoffrey Kong and/or entities associated with him at XXX Sussex Street (the Inspection Premises):
(a) The originals of any document comprised in the records of the Respondent which purports to bear the signature of either or both of the Applicants;
(b) The originals of any tax invoice, certificate of insurance or statement of account held in the Respondent’s records relating to the period 1 July 2016 to 31 December 2021;
(c) The originals of each of the documents described as supporting documents in Exhibit 1, being the lever arch folder of documents filed by the Respondent in these proceedings under cover of a letter dated 25 January 2022 and received by the Registry on 27 January 2022.
(2) Inspection under order 1 above is subject to the following conditions:
(a) Both Applicants are permitted to attend the Inspection Premises during business on 24 hours’ notice, provided such attendance takes place between the hours of 2:00 pm and 5:00 pm;
(b) The Applicants are permitted to attend on more than one occasion;
(c) The Applicants may photocopy up to 30 pages of documents at the Inspection Premises at no charge to them, any further photocopies to be charged at 20 cents per page.
(3) Foreshew Strata Agency Pty Limited is appointed strata managing agent to exercise all of the functions of the Owners Corporation pursuant to section 237 of the Strata Schemes Management Act 2015 (NSW) with immediate effect.
(4) The parties are directed to notify Foreshew of its appointment forthwith.

Catchwords:
LAND LAW — Strata title — Appointment of compulsory strata managing agent —
Order to supply information or documents

Legislation Cited:
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Bischoff v Sahade [2015] NSWCATAP 135

Texts Cited:
Nil

Category: Principal judgment
Parties: Tracey Chen (First Applicant)
Le San Huyn (Second Applicant)
The Owners - Strata Plan No. 7262 (Respondent)
Representation: First and Second Applicant (Self-represented)
G Kong (Respondent)

File Number(s): SC 21/43614
Publication restriction: Nil

REASONS FOR DECISION

This is an application for the supply of information under section 188 of the Strata Schemes Management Act 2015 (NSW) (the SSMA) and for the appointment of a strata managing agent under section 237 of the SSMA.
A degree of agreement was reached between the parties during the course of the hearing, partially disposing of the matters in issue. The Respondent agreed to provide access to the Applicants to certain original documents, according to a regime that was largely (if not totally) agreed. Further, the Respondent ultimately did not oppose…

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: [2022] NSWCATCD 58
Decision Date: 02 May 2022

CaseChat Overview and Summary

In the case of Chen v The Owners – Strata Plan No. 7262, the Central Administrative Tribunal of New South Wales was tasked with resolving a dispute within a strata scheme. The applicants, Chen and another party, sought orders to inspect certain documents held by the respondents, who were the owners of a strata plan. The applicants also sought the appointment of a compulsory strata managing agent due to the respondents' failure to perform their duties. The dispute arose from the applicants' allegations of mismanagement and failure to maintain the property, leading to safety concerns and financial mismanagement.

The primary legal issues before the court were whether the applicants were entitled to inspect specific documents held by the respondents and whether the court should appoint a compulsory strata managing agent. The applicants argued that the inspection of the documents was necessary to ascertain the truth about the management of the strata scheme, including financial transactions and the validity of certain signatures. They contended that the respondents' failure to manage the strata plan effectively justified the appointment of a compulsory managing agent. The respondents, on the other hand, opposed the inspection and the appointment of a managing agent, arguing that the applicants' requests were overly broad and that there was no justification for such measures.

The tribunal found in favour of the applicants on both issues. Regarding the inspection, the tribunal held that the applicants had demonstrated a sufficient basis to justify the inspection of the specified documents. It noted that the applicants' concerns about mismanagement and safety warranted a closer examination of the documents in question. The tribunal also determined that the respondents' objections to the inspection were insufficient to override the applicants' rights. In relation to the appointment of a compulsory strata managing agent, the tribunal concluded that the respondents' failure to manage the strata plan effectively and their inability to provide adequate explanations for their actions warranted the intervention of an independent managing agent. The tribunal appointed Foreshew Strata Agency Pty Limited as the compulsory strata managing agent, effective immediately.

The tribunal ordered that the respondents permit the applicants to inspect specific documents at the offices of Mr Geoffrey Kong or associated entities. The inspection was to occur during business hours, with certain conditions regarding notice and photocopying. Additionally, Foreshew Strata Agency Pty Limited was appointed as the strata managing agent, and the parties were directed to notify Foreshew of this appointment forthwith.

Orders

Orders of the court

(1) Pursuant to s. 188 of the Strata Schemes Management Act 2015 (NSW) the Respondent is to permit the Applicants to inspect the following documents at the offices occupied by Mr Geoffrey Kong and/or entities associated with him at XXX Sussex Street (the Inspection Premises):

(a) The originals of any document comprised in the records of the Respondent which purports to bear the signature of either or both of the Applicants;

(b) The originals of any tax invoice, certificate of insurance or statement of account held in the Respondent’s records relating to the period 1 July 2016 to 31 December 2021;

(c) The originals of each of the documents described as supporting documents in Exhibit 1, being the lever arch folder of documents filed by the Respondent in these proceedings under cover of a letter dated 25 January 2022 and received by the Registry on 27 January 2022.

(2) Inspection under order 1 above is subject to the following conditions:

(a) Both Applicants are permitted to attend the Inspection Premises during business on 24 hours’ notice, provided such attendance takes place between the hours of 2:00 pm and 5:00 pm;

(b) The Applicants are permitted to attend on more than one occasion;

(c) The Applicants may photocopy up to 30 pages of documents at the Inspection Premises at no charge to them, any further photocopies to be charged at 20 cents per page.

(3) Foreshew Strata Agency Pty Limited is appointed strata managing agent to exercise all of the functions of the Owners Corporation pursuant to section 237 of the Strata Schemes Management Act 2015 (NSW) with immediate effect.

(4) The parties are directed to notify Foreshew of its appointment forthwith.

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:	Chen v The Owners - Strata Plan No. 7262 [2022] NSWCATCD 58
Hearing dates:	29 April 2022
Date of orders:	02 May 2022
Decision date:	02 May 2022
Jurisdiction:	Consumer and Commercial Division
Before:	K Andronos SC, Senior Member
Decision:	(1) Pursuant to s. 188 of the Strata Schemes Management Act 2015 (NSW) the Respondent is to permit the Applicants to inspect the following documents at the offices occupied by Mr Geoffrey Kong and/or entities associated with him at XXX Sussex Street (the Inspection Premises): (a) The originals of any document comprised in the records of the Respondent which purports to bear the signature of either or both of the Applicants; (b) The originals of any tax invoice, certificate of insurance or statement of account held in the Respondent’s records relating to the period 1 July 2016 to 31 December 2021; (c) The originals of each of the documents described as supporting documents in Exhibit 1, being the lever arch folder of documents filed by the Respondent in these proceedings under cover of a letter dated 25 January 2022 and received by the Registry on 27 January 2022. (2) Inspection under order 1 above is subject to the following conditions: (a) Both Applicants are permitted to attend the Inspection Premises during business on 24 hours’ notice, provided such attendance takes place between the hours of 2:00 pm and 5:00 pm; (b) The Applicants are permitted to attend on more than one occasion; (c) The Applicants may photocopy up to 30 pages of documents at the Inspection Premises at no charge to them, any further photocopies to be charged at 20 cents per page. (3) Foreshew Strata Agency Pty Limited is appointed strata managing agent to exercise all of the functions of the Owners Corporation pursuant to section 237 of the Strata Schemes Management Act 2015 (NSW) with immediate effect. (4) The parties are directed to notify Foreshew of its appointment forthwith.
Catchwords:	LAND LAW — Strata title — Appointment of compulsory strata managing agent — Order to supply information or documents
Legislation Cited:	Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Bischoff v Sahade [2015] NSWCATAP 135
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Tracey Chen (First Applicant) Le San Huyn (Second Applicant) The Owners - Strata Plan No. 7262 (Respondent)
Representation:	First and Second Applicant (Self-represented) G Kong (Respondent)
File Number(s):	SC 21/43614
Publication restriction:	Nil