Farland v Simmons - [2018] NSWCATCD 28

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Farland v Simmons; Simmons v Farland [2018] NSWCATCD 28
Hearing dates: 10 July 2018
Date of orders: 12 July 2018
Decision date: 12 July 2018
Jurisdiction: Consumer and Commercial Division
Before: Jeffery Smith, Senior Member
Decision:
(1) An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 237 appointing Proactive Strata Services Pty Ltd of P.O. Box 447, West Ryde 1685 as strata managing agent for The Owners-Strata Scheme No 13849. The appointment shall be on the terms and conditions as set out in the Strata Management Agency Agreement dated 13 June 2018 provided by Proactive Strata Services Pty Ltd and filed in these proceedings.
(2) Proactive Strata Services Pty Ltd shall exercise all of the functions of the Owners Corporation including the functions of the chairperson, treasurer, secretary and the strata committee.
(3) Appointment shall be for a period of twelve months from the date of these orders.
(4) Kooper and Levi Strata Management Pty Ltd and The Owners – Strata Scheme No 13849 and any lot owner shall deliver any books, records or other property of the Owners Corporation held by them to Proactive Strata Services Pty Ltd at P.O. Box 447, West Ryde 1685 within 7 days of the date of these orders.
(5) The Registrar is directed to notify Proactive Strata Services Pty Ltd of these orders forthwith both in writing and by email to info@proactivestrataservices.com.au
(6) If the parties are unable to agree on the issue of costs, leave is granted for any party seeking a costs order to file and serve a short written submission on that issue only with 14 days of the date of these orders.
(7) Leave is granted for the other party to file and serve a short written submission in reply on the issue of costs only within a further period of 14 days.
(8) Any submission on costs must address the issue of whether or not the party agrees to a hearing “on the papers” pursuant to the Civil and Administrative Tribunal Act 2013, s 50.

Legislation Cited: Civil and Administrative Tribunal Act 2013
Strata Schemes Management Act 2015
Cases Cited: Moallem v Consumer, Trader and Tenancy Tribunal and others [2013] NSWSC 1700
Xabregas v The Owners – Strata Plan No 79205, et al (No 2) [2014]NSWSC 1027
Category: Principal judgment
Parties: Catherine Farland, owner of lot 2
Louise Simmons, owner of lot 1
The Owners – Strata Plan No 13849
Representation:
Mr Fernon, of Counsel, instructed by J S Mueller & Co, lawyers for the owner of lot 2

Mr Attoh, Solicitor for the owner of lot 1

File Number(s): SC 18/15871, SC 18/15873, SC18/16939, SC18/18243

REASONS FOR DECISION

Procedural Background

These four applications were filed by the owners of the two lots within a two lot strata scheme. Ms Farland, the owner of lot 2 in Strata Scheme SP 13849 commenced proceedings by filing application SC 18/15873 on 5 April…

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.

Continue reading Farland v Simmons

Details

AGLC: Farland v Simmons; Simmons v Farland [2018] NSWCATCD 28
Case: [2018] NSWCATCD 28
Decision Date: 12 July 2018

CaseChat Overview and Summary

In Farland v Simmons, the dispute involved the appointment of a strata managing agent for The Owners-Strata Scheme No 13849. The case was heard in the Supreme Court of New South Wales. The primary issue was whether Proactive Strata Services Pty Ltd should be appointed as the strata managing agent and, if so, under what terms and conditions. The application was made under the provisions of the Strata Schemes Management Act 2015.

The court considered the statutory framework for appointing a strata managing agent, including the factors outlined in section 237 of the Act. It was necessary to determine if Proactive Strata Services Pty Ltd was suitable for the role and if the terms of the Strata Management Agency Agreement were appropriate. The court also needed to decide whether the appointment should be made for a fixed period, such as twelve months, and if the existing managing agent, Kooper and Levi Strata Management Pty Ltd, should hand over relevant records and property to the new agent. The court had to balance the interests of the Owners Corporation and the lot owners while ensuring compliance with the Act.

The court found that Proactive Strata Services Pty Ltd was suitable for the role and that the terms of the proposed Strata Management Agency Agreement were appropriate. It determined that a fixed term of twelve months was reasonable to allow for a transition period and to provide an opportunity to review the performance of the new managing agent. The court ordered that Proactive Strata Services Pty Ltd be appointed as the strata managing agent for the Owners Corporation, with the authority to exercise all functions of the chairperson, treasurer, secretary, and strata committee. The existing managing agent and any lot owner were directed to hand over any relevant records and property within seven days. The court also granted leave for the parties to submit written submissions on the issue of costs, with an option for a hearing "on the papers."

Orders

Orders of the court

(1) An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 237 appointing Proactive Strata Services Pty Ltd of P.O. Box 447, West Ryde 1685 as strata managing agent for The Owners-Strata Scheme No 13849. The appointment shall be on the terms and conditions as set out in the Strata Management Agency Agreement dated 13 June 2018 provided by Proactive Strata Services Pty Ltd and filed in these proceedings.

(2) Proactive Strata Services Pty Ltd shall exercise all of the functions of the Owners Corporation including the functions of the chairperson, treasurer, secretary and the strata committee.

(3) Appointment shall be for a period of twelve months from the date of these orders.

(4) Kooper and Levi Strata Management Pty Ltd and The Owners – Strata Scheme No 13849 and any lot owner shall deliver any books, records or other property of the Owners Corporation held by them to Proactive Strata Services Pty Ltd at P.O. Box 447, West Ryde 1685 within 7 days of the date of these orders.

(5) The Registrar is directed to notify Proactive Strata Services Pty Ltd of these orders forthwith both in writing and by email to info@proactivestrataservices.com.au

(6) If the parties are unable to agree on the issue of costs, leave is granted for any party seeking a costs order to file and serve a short written submission on that issue only with 14 days of the date of these orders.

(7) Leave is granted for the other party to file and serve a short written submission in reply on the issue of costs only within a further period of 14 days.

(8) Any submission on costs must address the issue of whether or not the party agrees to a hearing “on the papers” pursuant to the Civil and Administrative Tribunal Act 2013, s 50.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Farland v Simmons; Simmons v Farland [2018] NSWCATCD 28
Hearing dates:	10 July 2018
Date of orders:	12 July 2018
Decision date:	12 July 2018
Jurisdiction:	Consumer and Commercial Division
Before:	Jeffery Smith, Senior Member
Decision:	(1) An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 237 appointing Proactive Strata Services Pty Ltd of P.O. Box 447, West Ryde 1685 as strata managing agent for The Owners-Strata Scheme No 13849. The appointment shall be on the terms and conditions as set out in the Strata Management Agency Agreement dated 13 June 2018 provided by Proactive Strata Services Pty Ltd and filed in these proceedings. (2) Proactive Strata Services Pty Ltd shall exercise all of the functions of the Owners Corporation including the functions of the chairperson, treasurer, secretary and the strata committee. (3) Appointment shall be for a period of twelve months from the date of these orders. (4) Kooper and Levi Strata Management Pty Ltd and The Owners – Strata Scheme No 13849 and any lot owner shall deliver any books, records or other property of the Owners Corporation held by them to Proactive Strata Services Pty Ltd at P.O. Box 447, West Ryde 1685 within 7 days of the date of these orders. (5) The Registrar is directed to notify Proactive Strata Services Pty Ltd of these orders forthwith both in writing and by email to info@proactivestrataservices.com.au (6) If the parties are unable to agree on the issue of costs, leave is granted for any party seeking a costs order to file and serve a short written submission on that issue only with 14 days of the date of these orders. (7) Leave is granted for the other party to file and serve a short written submission in reply on the issue of costs only within a further period of 14 days. (8) Any submission on costs must address the issue of whether or not the party agrees to a hearing “on the papers” pursuant to the Civil and Administrative Tribunal Act 2013, s 50.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015
Cases Cited:	Moallem v Consumer, Trader and Tenancy Tribunal and others [2013] NSWSC 1700 Xabregas v The Owners – Strata Plan No 79205, et al (No 2) [2014]NSWSC 1027
Category:	Principal judgment
Parties:	Catherine Farland, owner of lot 2 Louise Simmons, owner of lot 1 The Owners – Strata Plan No 13849
Representation:	Mr Fernon, of Counsel, instructed by J S Mueller & Co, lawyers for the owner of lot 2 Mr Attoh, Solicitor for the owner of lot 1
File Number(s):	SC 18/15871, SC 18/15873, SC18/16939, SC18/18243