Coshott v The Owners SP No 48892 - [2008] NSWSC 854

CITATION: Coshott v The Owners SP No 48892 [2008] NSWSC 854

HEARING DATE(S): 12 May 2008

JUDGMENT DATE :
21 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: Summons dismissed with costs.
Liberty to the parties to apply on seven days' notice re costs.

CATCHWORDS: Unit levies - expenses of recovery can be claimed in subsequent proceedings. - Default judgment - money paid on garnishee order - judgment set aside - whether payment can be recovered - money had and received at common law - Local Court has jurisdiction to order repayment.

LEGISLATION CITED: Legal Profession Act 2004
Local Court Act 2007 s 39Strata Schemes Management Act 1996 s 80

CATEGORY: Principal judgment

CASES CITED: Cook v Australian Postal Corp [1997] 597 FCA
Coshott v the Owners of Strata Plan No 48892 [2006] NSWSC 308
Coshott v Woollahra Municipal Council [2008] NSWCA 176
Farah Consructions Pty Limited v Say-Dee Pty Limited ([2007] HCA 22; (2007) 81 ALJR 1107
The Proprietors of Strata Plan 5399 v Feehan (unreported NSWSC 8 February 1996)

PARTIES: Robert Gilbert COSHOTT (Plaintiff)
The Owners of Strata Plan No 48892 (Defendant)

FILE NUMBER(S): SC 2007/15165

COUNSEL: Plaintiff in person
Ms P Koroknay (Defendant)

SOLICITORS: Plaintiff unrepresented
David Le Page (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 4975 of 2006

LOWER COURT JUDICIAL OFFICER : Reiss LCM

LOWER COURT DATE OF DECISION: 14 September 2007

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

21 August 2008

2007/15165 COSHOTT v THE OWNERS OF STRATA PLAN 48892

JUDGMENT

HIS HONOUR:
Introduction

1 In December 2004 the plaintiff was the registered proprietor of Lot 2 in Strata Plan 48892, being a part of premises in Double Bay consisting of six units. In 2004 the defendant, the owners’ corporation in respect of the premises, sued under the Strata Schemes Management Act 1996 to recover from the plaintiff outstanding levies in relation to Lot 2 totalling $14,232.60 plus interest to 7 October 2003 of $1,170.44 and further claimed the sum of $4,792.93, being a debt claimed pursuant to s 80(1) of the Act in respect of expenses incurred in covering previously outstanding levies. The levies claimed by the defendant comprised periodic levies from 1 June 2001 to 30 August 2003 totalling $9,273.60 plus a “special levy” due on 1 June 2003 of $4,960. The s 80(1) expenses were allegedly incurred in recovering earlier levies by proceedings in the Local Court and bankruptcy proceedings in the Federal Court. In the Local Court the plaintiff raised the following defences –

(i) he did not meet the definition of “owner” within the Act;

(iv) as far as the s 80(1) expenses were concerned:

(a) the…

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: [2008] NSWSC 854
Decision Date: 21 August 2008

CaseChat Overview and Summary

In Coshott v The Owners SP No 48892, the dispute arose between the unit owner, Coshott, and the body corporate of a strata scheme, Owners SP No 48892, over unit levies. The case was heard in the Local Court of New South Wales. Coshott had been ordered to pay unit levies, but upon failing to do so, a default judgment was entered against them. Subsequently, the body corporate obtained a garnishee order against Coshott's bank account, leading to the deduction of funds. However, the default judgment was later set aside, and Coshott sought the repayment of the amounts deducted.

The primary legal issue before the court was whether Coshott could recover the funds deducted from their bank account after the default judgment was set aside. This involved understanding the nature of the garnishee order and the effect of setting aside a default judgment on the recovery of costs. The court had to determine if the body corporate was entitled to retain the funds on the basis that they were for unit levies or if Coshott could reclaim the money on the grounds that the judgment had been improperly entered and subsequently set aside.

The court found that the body corporate could not retain the funds once the default judgment was set aside. It held that the payment of the levies following the garnishee order constituted money had and received at common law, which was recoverable by Coshott. The court emphasised that once a judgment is set aside, any money paid under that judgment becomes recoverable. Additionally, the Local Court was deemed to have jurisdiction to order the repayment of these funds. The decision underscored the importance of ensuring that legal proceedings are conducted properly to avoid unjust enrichment.

As a result, the court ordered the body corporate to repay the funds deducted from Coshott's bank account, along with interest. This ruling reinforced the principle that once a default judgment is set aside, any money paid under that judgment must be returned, and highlighted the Local Court's role in overseeing such disputes within strata schemes.

Orders