Haywood v Bright & Duggan Pty Limited

[2025] NSWCATCD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Haywood v Bright & Duggan Pty Limited [2025] NSWCATCD 59

Hearing dates:

4 March 2025

Date of orders:

23 June 2025

Decision date:

23 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Dr D Goldman, Senior Member

Decision:

1.    The application is dismissed.

2.    Within 14 days of the date of publication of these orders, either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question of costs.

3.    If either party files an application in accordance with order 2, the other party may within a further 14 days file and serve upon the party which filed the application, submissions in response not exceeding five pages, and any further evidence relevant to the question of costs.

4.    Unless a party files an application in accordance with order 2 above, there will be no order in relation to the costs of the proceedings.

Catchwords:

LAND LAW — Strata title — Strata managing agent — Inapplicability of s 37 duty of members of strata committee — Jurisdiction of Tribunal — Time to bring claim — Extension of time considerations —Standing of lot owners to claim damages allegedly owed to owners corporation

Legislation Cited:

Civil and Administrative Tribunal Act 2014 (NSW), s 28(1), s 41, Sch 1 cl 16(2)

Civil and Administrative Tribunal Rules 2014 (NSW), r 23(b)

Strata Schemes Management Act 2015 (NSW), ss 24, 37, 57, 232(a)

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230

The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5

Category:

Principal judgment

Parties:

First applicant: Kristyn Haywood
Second applicant: Angela Xu
Third applicant: Andrew Trenko-Press
Respondent: Bright & Duggan Pty Limited

Representation:

Counsel:

Mr C Fini, solicitor (Respondent)

Solicitors:

Grace Lawyers (Respondent)

The first and second applicants were self-represented and represented the third respondent

File Number(s):

2024/00355276

Publication restriction:

Nil.

REASONS FOR DECISION

The parties and application

1. The applicants are three separate lot owners in a large strata development in St Ives. They have brought an application against the respondent strata managing agent (Strata Managing Agent) appointed by The Owners – SP No 87639 (Owners Corporation). The applicants commenced this proceeding ostensibly seeking a variety of declarations and orders against the Strata Managing Agent for various alleged defaults at, and following, an extraordinary general meeting of the Owners Corporation held on 15 May 2024. The focus of concern was a resolution to renew a building management contract (Resolution).

2. The Resolution was long and articulated, with options. It does not need to be extracted. It was common ground that, at the meeting, there were technical issues with the software platform which counted the votes electronically. A subsequent manual count by the Chair resulted in the Resolution being carried, authorising the Owners Corporation to accept a renewal of a building management contract with the incumbent. The applicants contend in their amended points of claim that the online vote “clearly indicated that the motion would be defeated” and that various irregularities in the manual vote by poll improperly resulted in the Resolution being passed and the contract renewed.

3. The applicants’ reasons, provided in support of the orders sought which were outlined in their application filed 25 September 2024, consisted of many allegations. The allegations and orders, edited to omit some overlap, are listed and include:

1. the Strata Managing Agent’s representative Kieran Spink “mishandled the voting … which resulted in the awarding of an $800,000 building management contract incorrectly”;

2. the Strata Managing Agent’s representative “did not exercise reasonable skill, care and diligence in carrying out their duties nor did they act honestly, fairly and professionally at the meeting”;

3. the Strata Managing Agent’s representative gave untrue statements in a synopsis which formed the basis of a solicitor’s investigation and report dated 12 June 2024;

4. online counting on the StrataVoteAnywhere platform initially showed the Resolution as defeated, however a manual count by the Strata Managing Agent’s representative saw the Resolution carried, which the applicants contend “is impossible”;

5. “at least two votes on the proxy register were recorded incorrectly”;

6. several lot owners questioned the recording of votes and asked for the vote to be held again, but the Strata Managing Agent declined;

7. the Strata Managing Agent should be held to account for awarding an $800,000 contract against the Owners Corporation’s wishes;

8. the application or the orders (although a little unclear) should:

1. prevent the Strata Managing Agent and strata managing agents more generally “from abusing their power and taking advantage of owners”;

2. “influence the regulators and legislators to strengthen the protections for owners who are vulnerable to strata management companies lack of ethics” (sic);

3. “achieve justice for the owners corporation after [the Strata Managing Agent] (a) refused to supply documents such as the synopsis from the strata manager and the statement from the strata vote technology provider and (b) did not provide [their] complaint to their lawyer to feed into the investigation which resulted in a meaningless investigation to cover themselves, rather than get to the truth and (c) blamed the complainants for their behaviour instead of taking responsibility for their errors”;

4. “correct records for current and future owners and accurate decision-making”;

5. “put in place measures to prevent this type of incident happening again when dealing with large contracts…”;

6. “identify conflicts of interest and suggest to legislators changes in current disclosure provisions”; and

7. “to possibly seek compensation from [the Strata Managing Agent] for the mishandling of the voting”.

4. The applicants relied upon a document provided two days before the hearing, entitled “Amended points of claim” updated 2 March 2025. That document contains something of a narrative and submission, referring to:

1. the electronic voting system;

2. the request for a poll in relation to the Resolution pursuant to Sch 1 cl 14(4) of the SSMA;

3. irregularities in the vote calculation;

4. technical issues and lack of transparency;

5. immediate actions post-meeting, including requests for a revote and strata logs being ignored, strata logs being withheld for over a month, errors identified in individual votes, execution of the contract despite concluded vote, discrepancies in meeting minutes and lack of explanation;

6. further actions post meeting, including formal complaint to Bright & Duggan leadership, meetings, dismissive and aggressive responses, independent review by solicitors retained by Bright & Duggan, and the owners’ challenge;

7. breaches of the Strata Schemes Management Act 2015 (NSW) (SSMA) and regulations including failure to properly conduct a poll vote (referencing s 252 of the SSMA which relates to proof of reasonable excuse as a defence to an offence); lack of transparency in vote counting (referencing Sch 1 cl 16(2) of the SSMA), denial of the right to a fair vote (natural justice and procedural fairness); potential vote manipulation and integrity issues; failure to provide voting records (s 182 of the SSMA); failure to act with reasonable care (s 37 of the SSMA), duty to maintain records (s 96 of the SSMA);

8. breach of the Strata Managing Agent’s agency agreement, on the basis that “the mishandling of the 15 May meeting constitutes ‘gross negligence’”;

9. loss in the amount of $95,000 being for termination costs after the Owners Corporation paid this settlement amount after terminating the management agreement the subject of the Resolution.

5. At the outset of the hearing, I asked the applicants to clarify the relief sought by reference to the Tribunal’s powers and supporting law. The first applicant referred to the Tribunal orders sought at the end of the above document, “Amended Points of Claim”:

1. section 232(a) of the SSMA, being the power of the Tribunal “on application by an interested person, original owner or building manager, [to] make an order to settle a complaint or dispute about … (a) the operation, administration or management of a strata scheme under this Act” (Order 1);

2. a declaration under s 37 of the SSMA, being the duty of each member of a strata committee to carry out functions for the benefit so far as practicable of the Owners Corporation, and to do so with due care and diligence (Order 2); and

3. payment to the Owners Corporation of $95,000 plus legal expenses (Order 3).

6. During the hearing and whilst the applicants presented their case, I asked for legal authorities which might specifically apply to the Strata Management Agent, given that s 37 of the SSMA refers to the duty of “each member” of the strata committee, being someone who will generally be a lot owner or appointee of a specific lot owner. The applicants directed me to s 57 of the SSMA, which refers to a strata managing agent being guilty of an offence where it has been delegated a function by the owners corporation, the breach of which would be an offence.

7. In deciding this case, the Tribunal has considered all of the evidence and submissions filed by the parties. That has included the following documents and categories.

1. Applicants

1. Bundle of documents submitted 27 February 2025 including the following documents;

1. Notice of EGM;

2. Screenshots;

3. Statutory declarations of Kristyn Haywood (5 November 2024), Ann Byrnes (5 November 2024), Christopher Vazgen Michael (15 May 2024);

4. Emails, spreadsheets, minutes of meeting, deed of variation of building management agreement and other correspondence;

5. NCAT submission/amended points of claim updated 2 March 2025;

6. Response to applicants’ response to applicants submission dated 3 March [sic.]

2. Respondent

1. Statement of Nick Stephenson dated 26 February 2025;

2. Exhibit NS-1;

3. Respondent’s submissions dated 3 March 2025.

8. It is unnecessary to make findings of fact in relation to the evidence filed. The primary documents including minutes, spreadsheets, screenshots and correspondence speak for themselves. Even accepting the applicants’ allegations at their highest, they face threshold problems engaging:

1. the jurisdiction of the Tribunal to hear this matter; and

2. the laws chosen to respond to their claims.

Jurisdiction and standing of the applicants to seek the orders

9. The Tribunal had directed that the Owners Corporation be joined as a respondent, at or after a directions hearing on 6 November 2024. This was apparently on its own direction, in the face of insistence by the applicants that the Strata Managing Agent be retained as a respondent. The addition of the Owners Corporation did not occur as a matter of record and it did not appear at the hearing as an interested person. Nothing turns on this. None of the documents previously or subsequently filed by the applicants explicitly sought orders against the Owners Corporation or findings against it. The applicants at the hearing unequivocally maintained the validity of their claim against the Strata Managing Agent as the chosen respondent, with no suggestion that they sought relief from the Owners Corporation or that they represented the Owners Corporation.

10. The dispute or complaint raised by the applicants centres on the meeting at which the Resolution was passed, on 15 May 2024. Further conduct the subject of complaint concluded, it appears, on 12 June 2024 when the solicitors retained by the SMA reported on the outcome of their investigation (referred to above at [6]) or 3 July 2024 when the applicants and 3 other lot owners replied to the 12 June 2024 report.

11. The redress sought by the applicants arises from what they submit was the Strata Managing Agent’s “mismanagement of the 15 May meeting”.

12. The starting point to consider the jurisdiction of the Tribunal over an application of this general nature is the SSMA, s 232(1), as specified by the applicants in their Order 1.

232   Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—

(a)  the operation, administration or management of a strata scheme under this Act,

(b)  an agreement authorised or required to be entered into under this Act,

(c)  an agreement appointing a strata managing agent or a building manager,

(d)  an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e)  an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f)  an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

13. No specific orders to settle the dispute and rectify the complaints have been requested under this section by the applicants as interested persons in respect of Order 1, except to the extent that Orders 2 and 3 can be considered orders sought under this section. For reasons discussed below, neither Order 2 nor Order 3 can be made.

14. The time within which an application for orders must be brought under s 232(1) is not specified in the SSMA (ignoring for present purposes whether this provision could apply to the Strata Managing Agent, as contended by the applicants). Furthermore, the time for seeking an order for a breach of duty of each member of a strata committee under s 37 of the SSMA is not specified.

15. Because no time limit for bringing applications is specified in relation to these sections under the SSMA, the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 23(b) applies. That rule requires the applicant to bring an application within 28 days from the day on which the applicant became entitled to make the application. The NCAT Act, s 41, provides a discretion to the Tribunal to extend the time for bringing the application. Without an extension, the time by which the applicants should have brought this application was 28 days from the day of the alleged mismanagement at the meeting. Alternatively, the time could have started on the day the report was received from the Strata Managing Agent’s solicitors dated 12 June 2024, being after further alleged breaches by the Strata Managing Agent. That report, in the opinion of the applicants, demonstrated that the Strata Managing Agent had “not done a thorough investigation”, according to the letter the applicants sent in reply on 3 July 2024. The applicants’ letter also concluded that “We will now pursue our NCAT claim and seek a forensic review of the Strata Vote software…”

16. The proceeding was not commenced by the applicants until 25 September 2024, over 4 months after the date of the meeting at which the Resolution was passed, over 3 months after the report from the SMA’s solicitors, and over 2 months after the reply from the applicants foreshadowing their NCAT application. It was therefore brought after the limitation period had expired for a matter of this nature before the Tribunal.

Should time be extended to bring the application?

17. The principles to be applied in considering whether to extend time to bring an application under the NCAT Act, s 41, are identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Although concerning an extension of time for appeal of a decision, these principles apply to extensions of time for commencing proceedings. The discretionary matters to be considered by the Tribunal are:

1. the length of the delay;

2. the reason for the delay;

3. the prospects of success, being whether the applicant has a fairly arguable case; and

4. the extent of any prejudice suffered by the respondent.

18. In considering these matters, the Tribunal notes the following.

1. The length of the delay is not explained, in circumstances where the Resolution concerned an approval for the Owners Corporation to enter a contract worth $800,000 over 2 years, according to the amended points of claim. To avoid potential exposure to a substantial amount of money and the damages which the applicants allege resulted, the applicants could have been expected to act swiftly to challenge the vote.

2. The applicants have not provided a reason for the delay in filing the application. The SMA’s solicitors drew attention to the lateness of the application in their submissions dated 3 March 2025, at [9(b)], by reference to a more orthodox application which could have been brought under ss 24 and 25 of the SSMA challenging the Resolution and voting. The applicants responded in just over 4 pages to those submissions in a document handed up at the hearing, but did not address the lateness of the application.

3. There are no prospects of success, discussed in more detail at [21], in respect of Orders 2 and 3. No specific orders are sought in respect of Order 1, so no such orders are able to be identified or could be granted (see [13] above).

4. Against the above matters, there is no evidence that an extension of time to bring the proceedings would prejudice the Strata Managing Agent.

19. Having regard to the criteria in Jackson and consideration of the above matters, the Tribunal finds that an extension of time to file this application should not be ordered. The persuasive factor for the Tribunal is that the application has no prospects of success, for the reasons below.

Do the applicants have an arguable case on the facts alleged?

20. As mentioned, there is no case to make Order 1 because that order cannot be made for the reasons given in [13].

Can a declaration be made and does section 37 (duties of members of strata committee) apply to a strata managing agent?

21. The applicants seek, in Order 2, to have a declaration made under s 37 of the SSMA.

22. An order or a declaration cannot be made as sought in Order 2. The expression of the order or declaration sought is simply a general statement of an existing principle in a section of an Act of Parliament, s 37 of the NCAT Act. In any event, the Tribunal does not have power to make declarations, a point made by the Strata Managing Agent’s solicitors, citing the Appeal Panel in Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 at [60]. As written there:

“the Tribunal does not have a general power to give declaratory relief. If a finding needs to be made or a Tribunal needs to ‘declare’ that it is satisfied of a particular matter, it expresses those views in the body of the decision, rather than in a separate order. For example, in a particular case the Tribunal may conclude that the owners corporation has breached the duty in s 106 to maintain and repair common property. That conclusion is expressed in the reasons for decision rather than as a separate order. If the Tribunal decides to make an order for damages as a consequence of that breach, that conclusion would be expressed as an order.”

23. Even if the Tribunal had power to make declarations, s 37 duties apply specifically to members of a strata committee, not to a strata managing agent.

37   Duty of members of strata committee

It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.

24. As mentioned earlier at [6], the applicants argued that s 57 of the SSMA establishes some manner of liability or imposes a duty on a strata managing agent as a delegate of an owners corporation. Section 57 does no such thing. It is in the following terms:

57   Breaches by strata managing agent

(1)  If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.

(2)  A strata managing agent must not, in connection with the provision of services as a strata managing agent or the exercise of functions as a strata managing agent, request or accept a gift or other benefit from another person for himself or herself or for another person.

25. Section 57 enables a strata managing agent to be guilty of an offence where a specific breach of duty would constitute an offence if committed by the owners corporation, and that function or duty had been delegated to the strata managing agent. There was no allegation prior to this argument or in the evidence that the Strata Managing Agent had received a delegation of function from the owners corporation and that an offence had been alleged or committed under a delegation of function.

26. As observed of s 57 of the SSMA by the Appeal Panel in Walsh (cited above at [22]):

“This provision has two pre-requisites. First, a strata managing agency must have been delegated a function by the owners corporation. Second, a breach of the duty by the owners corporation would constitute an offence under a provision of the SSM Act. If those two pre-requisites are established, the managing agent is guilty of an offence for any breach of the duty by the agent.” 

27. Neither prerequisite is established by the applicants on the facts alleged. There is no connection, as can be seen, between ss 57 and 37 of the SSMA and the facts alleged by the applicants. There is also no duty, breach of which constitutes an offence, identified by the applicants – either independently, by reference to duties owed by members of a strata committee, or under a delegation of power from the Owners Corporation.

28. Order 2 sought by the applicants cannot be made.

Are lot owners entitled to an order for damages payable to the owners corporation?

29. By Order 3, the applicants seek an order that the Strata Managing Agent reimburse the Owners Corporation for $95,000 in settlement costs plus all legal and mediation fees incurred to settle the claim with the counterparty to the building management contract (the subject of the Resolution).

30. The only party who or which can bring a claim for reimbursement of costs and payments made by the Owners Corporation is the legal entity the funds of which or whom were disbursed – here the Owner’s Corporation. The Owners Corporation is not a party to the proceedings. The Tribunal, as mentioned above at [9], gave a direction that the Owners Corporation be added as a respondent although that did not occur (and had no consequence). The Owners Corporation would need to have been joined to the proceedings as an applicant to make this claim. It did not do so and did not appear. The applicants made clear that they sought no orders against the Owners Corporation and that they did not bring the application as the Owners Corporation.

31. The applicants, as they are constituted, have identified no source of obligation the Strata Managing Agent owed to them personally and that was breached by its alleged mismanagement of the voting, either under the SSMA, another law, or by reference to any separate contract to which the applicants were a party. The applicants have also not identified any loss caused to them personally by the Strata Management Agent.

32. Order 3 sought by the applicants cannot be made.

Conclusion and orders

33. The solicitors for the Strata Managing Agent filed an application for miscellaneous matters on 7 February 2025, seeking to have this proceeding dismissed for various inadequacies. A number of those inadequacies are covered in these reasons. Given that the application for miscellaneous matters was unable to be dealt with prior to this hearing, it was not necessary or efficient to deal with that application when the parties had appeared before the Tribunal with their full cases to run. It is noteworthy that, in response to that application for miscellaneous matters, the applicants wrote:

“This case is not pointless. We have spent over a hundred hours without any legal support to put together, to the best of our limited ability, a strong case to show negligence on behalf of Bright & Duggan. We hope the Senior Member forgives our lack of legal knowledge and looks at the facts of this case as laid out in the Applicant’s final submission”.

34. No hard work, forgiveness or attempt to balance a lack of legal knowledge of a party can create jurisdiction or responsive law where none exists. As is often written, the Tribunal is a creature of statute. It only has “jurisdiction and functions as may be conferred or imposed on it by or under the [NCAT Act] or any other legislation”: NCAT Act, s 28(1). As noted by the Appeal Panel in The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 at [11]:

“It follows that unless jurisdiction or order-making powers are conferred or imposed by the NCAT Act or other legislation, the Tribunal must not exercise that jurisdiction or make those orders”.

35. Had the application been filed within time or should the discretion have been exercised differently to extend the time for filing the application, I have determined that this application would still fail. This would be so, even accepting the applicants’ allegations of fact on their face. The reasons for this determination are contained in my evaluation of the applicants’ prospects of success in [20] to [31] above.

36. At the conclusion of the hearing, the respondent’s solicitor sought to make submissions on costs. Directions are made to allow the parties to make submissions.

37. Accordingly, the Tribunal makes the following orders.

1. The application is dismissed.

2. Within 14 days of the date of publication of these orders, either party may file and serve upon the other party an application for an order in relation to the costs of the proceedings, with submissions in support, not exceeding 5 pages, and any further evidence relevant to the question ofcosts.

3. If either party files an application in accordance with order (2), the other party may within a further 14 days file and serve upon the party which filed the application, submissions in response not exceeding five pages, and any further evidence relevant to the question of costs.

4. Unless a party files an application in accordance with order (2) above, there will be no order in relation to the costs of the proceedings.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 August 2025