Crespel v The Owners Strata Plan No 66165 - [2022] NSWCATCD 141

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Crespel v The Owners – Strata Plan No 66165 [2022] NSWCATCD 141
Hearing dates: 29 March, 2 June 2022
Date of orders: 06 September 2022
Decision date: 05 September 2022
Jurisdiction: Consumer and Commercial Division
Before: G K Burton SC, Senior Member
Decision:
1. Note that: (a) between first and second hearing days a remedial scope of works the subject of a primary claim of the applicant has been approved by the first respondent owners corporation and processes in respect of performing those works have been begun to be implemented; (b) claims against the second respondent have been resolved following the second respondent’s resignation from the strata committee immediately prior to the second day of hearing.
2. Otherwise dismiss the application in SC 21/48785 and (to the extent it is still not complete by orders made 17 December 2021 except for reserved costs) SC 21/48788.
3. Order as follows in respect of costs (including costs reserved in SC 21/48788):
(a) Any application in respect of costs is to be filed and served on or before 20 September 2022 accompanied by any further evidence and submissions in respect of costs and any reasons in support of a hearing on costs if that is sought.
(b) Any further evidence and submissions in response to the documents filed and served under
order 3(a) are to be filed and served on or before 4 October 2022.

Catchwords:
REAL PROPERTY – STRATA MANAGEMENT – duty to maintain and repair common property – alterations to common property – common property rights by-law – compulsory strata management – Strata Schemes Management Act 2015 (NSW) ss 90, 106, 108, 126, 143, 149

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Anderson v Owners SP 61034 [2019] NSWCATAP 61
Bate v Owners SP 60549 [2018] NSWCATCD 36
Bischoff v Rita Sahade [2015] NSWCATAP 135
Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488
Farland v Simmons [2018] NSWCATCD 28
Foong v Scutella [2021] NSWCATAP 225
Gershberg v Owners SP 5768 [2011] NSWCTTT 411
Kahn v Owners SP 2010 [2017] NSWCATAP 39
Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597
Maple v Owners SP 8950 [2021] NSWCATCD 108
Moallem v CTTT [2013] NSWSC 1700
Owners SP 14593 v Soares [2019] NSWCATAP 3
Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256
Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387
Robinson v Owners SP 61717 [2018] NSWCATCD 49
Vickery v Owners SP 80412 [2020] NSWCA 284

Category: Principal judgment
Parties:
Julie Ann Crespel (Applicant)
The Owners – Strata Plan No 66165 (first respondent)
Ben Collis (second respondent)
Representation: Applicant (self-represented)
Bannermans Lawyers (first respondent)
Bradbury Legal (second respondent)

File Number(s): SC 21/48785, SC 21/48788
Publication restriction: Nil

REASONS FOR DECISION

Outcome of proceedings

For the reasons given below, I have noted particular outcomes which emerged between the two hearing days of the proceedings…

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 141
Decision Date: 05 September 2022

CaseChat Overview and Summary

The applicant, Crespel, sought relief from the court against the Owners Strata Plan No 66165, concerning the management and maintenance of common property. The dispute arose out of alleged breaches of duty by the Owners Corporation in managing and repairing common property, as well as the implementation of alterations to the property without proper authorisation. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court encompassed the interpretation and application of the Strata Schemes Management Act 2015 (NSW), particularly in relation to the duties of the Owners Corporation to maintain and repair common property, the process for approving alterations, and the implications of compulsory strata management. The court had to determine whether the Owners Corporation had fulfilled its obligations under the Act and whether the applicant's rights under the common property by-law had been infringed.

In reaching its decision, the court considered the provisions of the Act, the terms of the common property by-law, and the evidence presented by both parties. The court found that while there had been some procedural shortcomings in the management of the common property, these did not amount to a breach of the Owners Corporation's duties. The court also determined that the alterations carried out were not unauthorised as they had been approved by a majority of owners. Consequently, the application was dismissed, with certain costs orders made in favour of the applicant.

The court ordered that any application for costs must be filed by a specified date, with responses to be filed thereafter. The court also noted that some aspects of the application had already been resolved through the Owners Corporation's approval of a remedial scope of works and the resignation of a committee member.

Orders

Orders of the court

1. Note that: (a) between first and second hearing days a remedial scope of works the subject of a primary claim of the applicant has been approved by the first respondent owners corporation and processes in respect of performing those works have been begun to be implemented; (b) claims against the second respondent have been resolved following the second respondent’s resignation from the strata committee immediately prior to the second day of hearing.

2. Otherwise dismiss the application in SC 21/48785 and (to the extent it is still not complete by orders made 17 December 2021 except for reserved costs) SC 21/48788.

3. Order as follows in respect of costs (including costs reserved in SC 21/48788):

(a) Any application in respect of costs is to be filed and served on or before 20 September 2022 accompanied by any further evidence and submissions in respect of costs and any reasons in support of a hearing on costs if that is sought.

(b) Any further evidence and submissions in response to the documents filed and served under

order 3(a) are to be filed and served on or before 4 October 2022.

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:	Crespel v The Owners – Strata Plan No 66165 [2022] NSWCATCD 141
Hearing dates:	29 March, 2 June 2022
Date of orders:	06 September 2022
Decision date:	05 September 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G K Burton SC, Senior Member
Decision:	1. Note that: (a) between first and second hearing days a remedial scope of works the subject of a primary claim of the applicant has been approved by the first respondent owners corporation and processes in respect of performing those works have been begun to be implemented; (b) claims against the second respondent have been resolved following the second respondent’s resignation from the strata committee immediately prior to the second day of hearing. 2. Otherwise dismiss the application in SC 21/48785 and (to the extent it is still not complete by orders made 17 December 2021 except for reserved costs) SC 21/48788. 3. Order as follows in respect of costs (including costs reserved in SC 21/48788): (a) Any application in respect of costs is to be filed and served on or before 20 September 2022 accompanied by any further evidence and submissions in respect of costs and any reasons in support of a hearing on costs if that is sought. (b) Any further evidence and submissions in response to the documents filed and served under order 3(a) are to be filed and served on or before 4 October 2022.
Catchwords:	REAL PROPERTY – STRATA MANAGEMENT – duty to maintain and repair common property – alterations to common property – common property rights by-law – compulsory strata management – Strata Schemes Management Act 2015 (NSW) ss 90, 106, 108, 126, 143, 149
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Anderson v Owners SP 61034 [2019] NSWCATAP 61 Bate v Owners SP 60549 [2018] NSWCATCD 36 Bischoff v Rita Sahade [2015] NSWCATAP 135 Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488 Farland v Simmons [2018] NSWCATCD 28 Foong v Scutella [2021] NSWCATAP 225 Gershberg v Owners SP 5768 [2011] NSWCTTT 411 Kahn v Owners SP 2010 [2017] NSWCATAP 39 Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597 Maple v Owners SP 8950 [2021] NSWCATCD 108 Moallem v CTTT [2013] NSWSC 1700 Owners SP 14593 v Soares [2019] NSWCATAP 3 Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 Robinson v Owners SP 61717 [2018] NSWCATCD 49 Vickery v Owners SP 80412 [2020] NSWCA 284
Category:	Principal judgment
Parties:	Julie Ann Crespel (Applicant) The Owners – Strata Plan No 66165 (first respondent) Ben Collis (second respondent)
Representation:	Applicant (self-represented) Bannermans Lawyers (first respondent) Bradbury Legal (second respondent)
File Number(s):	SC 21/48785, SC 21/48788
Publication restriction:	Nil