Katrina Knell v The Owners - Strata Plan 30194

[2015] NSWCATCD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Katrina Knell v The Owners - Strata Plan 30194 [2015] NSWCATCD 4
Hearing dates:	29 October 20143 December 2014
Date of orders:	13 January 2015
Decision date:	13 January 2015
Jurisdiction:	Consumer and Commercial Division
Before:	P. Boyce, Senior Member
Decision:	Order 1 of the Adjudicator’s Order in SCS 13/15641 dated 18 June 2013 is revoked. The application for renewal of the appeal against the Adjudicator’s Order is dismissed.
Catchwords:	Renewal of proceedings, appeal from adjudicators decision, compliance with consent orders
Legislation Cited:	Strata Schemes Management Act 1996 Civil and Administrative Tribunal Act 2013
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan 73943 [NSW 4092014]
Category:	Principal judgment
Parties:	Katrina Knell (applicant) The Owners – Strata Plan No 30194 (respondent)
Representation:	Counsel: Mr Hernan Pintos-Lopez for applicant, Mr Michael Galvin for respondent Solicitors: LFS Lawyers for applicant, Gadens Lawyers for respondent
File Number(s):	SCS 14/35072
Publication restriction:	Unrestricted

Judgment

1. This is an application for orders:

1. To appoint a strata manager to exercise all the functions of an owners corporation, including all the functions of the chairperson, secretary, treasurer and executive committee of the owners corporation under s162 of the Strata Schemes Management Act 1996 because:

1. The owners corporation has failed to comply with a requirement imposed on the owners corporation by an order under this Act;

2. The owners corporation has failed to perform one or more of its duties;

3. The management structure of the strata scheme is not functioning or is not functioning satisfactorily;

2. That [the applicant] do[es] not have to contribute to the costs of the advice by Jane Crittenden incurred by the Owners Corporation in respect of by-laws;

3. That [the applicant] do[es] not have to contribute to the legal costs incurred by the Owners Corporation in proceedings in NCAT, file numbers SCS 13/15641 and SCS 13/36579;

4. That the interest and debt recovery fees charged by Jamesons in respect of, and as a consequence of, the advice by Jane Crittenden be cancelled.

Background

2. The applicant is a lot owner in a strata scheme. The strata scheme comprises 4 lots.

3. The respondent is the owners’ corporation of the strata scheme.

4. The applicant purchased her lot in the strata scheme in about October 2009.

5. The applicant has complained about problems affecting the common property from about December 2009 onwards.

6. In late 2011 and early 2012, contractors and engineers investigated the applicant’s complaints about leaks from the common property into the main bedroom and kitchen, dampness of the carpet inside an external door to her dining room, unevenness of the carpeted floor surface of lot, dry rot to the bases of external verandah posts, construction of a storeroom without local authority approval and a lack of access to the foundation space beneath the floor level.

7. On 18 June 2013 an application by the applicant to appoint a strata manager pursuant to s162 of the Act was dismissed by Adjudicator Charles (file number SCS 13/15641).

8. In May 2014 the applicant vacated her lot. She alleges that the condition of the common property is such that she cannot sell or rent the lot.

9. On 12 May 2014 the applicant filed in the Supreme Court a Statement of Claim seeking relief against the respondent including orders for the repair works to remedy the damage caused to her lot by the respondents failure to maintain the common property (“Supreme Court proceedings”).

10. On 28 May 2014 an appeal by the applicant to the Tribunal was resolved by consent of the parties, resulting in the decision of Adjudicator Charles partly being set aside by the Tribunal on the following terms:

1 Order 2 made by the adjudicator in SCS13/15641 on 18 June 2013 is set aside [that is, the order dismissing the application for appointment of a strata manager].

2 In substitution for Order 2, the following order was made:

Pursuant to section 138 of the Strata Schemes Management Act 1996, the respondent is to forthwith repair the common property in accordance with the report of Doug McMIllan dated 24 February 2012 [referred to throughout this decision as the “Cardno Report”], such repairs to be consistent in materials, workmanship and appearance with the rest of the common property in SP 30194.

3 The appeal is otherwise dismissed.

4 The parties are to pay their own costs.

5 The Tribunal notes:

The agreement between the parties set out in Annexure A of their signed terms of settlement, a copy of which is on the Tribunal file and in the possession of the parties and,

That, as at the date of these orders, the Applicant does not propose to proceed with the renovations to her lot property [sic].

11. Annexure “A” of the terms of settlement referred to in the notation made by the Tribunal provides:

1 Within 7 days of today, the Owners will provide Ms Knell with a list of five strata managers, other than Jamesons & Associates, who practice in the Mosman area.

2 Within 7 days of receipt of the list of agents, Ms Knell will select three strata managers from that list who will be invited to tender for the provision of strata management services to the Owners. The three selected are to be communicated to the current strata manager in writing.

3 Within 7 days of receipt by the Owners’ agent of the list of selected agents, The Owners, invite them to tender for the provision of strata management services, and request that the tenders be provided within 21 days.

4 Within 14 days of receipt of the tenders referred to in [c], The Owners will resolve to appoint one of the tenderers as its managing agent, such appointment to take effect no later than 14 days after the resolution.

12. On 9 July 2014 the applicant filed the application now before the Tribunal for determination. The application is for a renewal of proceedings pursuant to Sch4, cl 8 of the Civil and Administrative Tribunal Act 2013.

13. The applicant alleges that the consent orders made by the Tribunal on 28 May 2014 have not been complied with, principally that the respondent has not carried out the works in Order 2 “forthwith”.

14. Although no evidence has been placed before the Tribunal of the discontinuance of those Supreme Court proceedings, the Tribunal accepts the advice from both the applicant’s and the respondent’s legal practitioners that those proceedings have been discontinued and that impediment to the Tribunal making a determination of the application now before it is removed.

Jurisdiction

15. The applicant contends that the Tribunal has power to make the orders sought by reason of cl 8 of sch 4 of the Civil and Administrative Tribunal Act 2013. That clause is as follows:

1 If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

2 If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

3 The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

4 When proceedings have been renewed in accordance with this clause, the Tribunal:

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

5 This clause does not apply if:

(a) the operation of an order has been suspended, or,

(b) the order is or has been the subject of an internal appeal.

16. The applicant makes extensive submissions in support of her interpretation of clause 8.

17. The respondent does not cavil with the applicant’s submissions and it concedes that leave of the Tribunal is not required in order to bring the renewal of the proceedings.

18. The Tribunal is satisfied that the renewal of the proceedings is not subject to the Tribunal’s leave being granted and that the applicant may renew the proceedings under clause 8(2).

19. The applicant further contends that the hearing of renewed proceedings is not in the nature of an appeal from the previous orders of the Tribunal. It is for the Tribunal to determine whether the relevant orders have been complied with.

20. Where the application results from consent orders, the applicant also contends that the Tribunal may take further evidence and make findings of fact and law. That new evidence may “traverse the merits of the dispute, to the extent that such evidence is relevant to the application and has not been previously considered by the Tribunal”.

21. Again the respondent does not cavil with the applicant’s submission.

22. S181(2) of the Strata Schemes Management Act permits the Tribunal in an appeal from the order of an adjudicator to admit new evidence.

23. The Tribunal is satisfied that in considering the application it may take further evidence and make further findings of fact and law.

24. The applicant and the respondent also agree that the relief available on determination of renewed proceedings is not limited to the original orders with the caveat that the respondent submits that the inquiry is not as broad as that contended by the applicant.

25. The Tribunal is satisfied pursuant to clause 8 (4) that, at its, discretion it may make “any other appropriate order under the [NCAT] Act or enabling legislation as it could have made when the matter was originally determined” or “refuse to make such an order”. Those orders may include the setting aside of previous orders.

Application

26. The evidence of both parties is extensive. The evidence is contained in both documents tendered and the oral evidence of witnesses. The witnesses were cross examined.

27. The applicant’s written evidence is contained in 11 bundles of documents tendered and admitted as exhibits. The respondent’s written evidence is contained in 8 bundles of documents tendered and admitted as exhibits.

28. The restatement of the evidence is not necessary as the Tribunal will address the issues and that part of the evidence of both parties that is relevant to those issues.

Has the respondent complied with the Tribunal and the Adjudicators orders?

29. The thrust of the applicant’s argument is that the respondent has failed to comply with the Tribunal and the Adjudicators orders.

30. Order 2 of the consent orders made on 28 May 2014 set aside the Adjudicators order dismissing the applicant’s application for the appointment of a strata manager and a new order 2 was substituted for the original order dismissing the application. The terms of that order are for the respondent is to “forthwith repair the common property in accordance with the report of Doug McMIllan dated 24 February 2012, such repairs to be consistent in materials, workmanship and appearance with the rest of the common property in SP 30194”.

31. The effect of the consent orders is that Order 1 of the Adjudicator Charles remains, that is

Upon the applicant assigning to the respondent the benefit of the report of Mr Doug McMillan of Cardno (the “Cardno Report”), an order that the respondent reimburses to the applicant such proportion of the amount of $3,675.87 paid by the applicant for the Cardno Report, that is commensurate with the aggregate of the unit entitlements of Lots 2, 3, and 4 of the strata scheme.

32. The respondent submits that the Cardno Report was not effectively assigned by the applicant and as such it has been unable to comply with its obligations under Order 1. It seeks to have that order rescinded by the Tribunal.

33. The applicant submits that on 28 May 2014 her legal representative handed to the respondent’s a handwritten document purporting to assign the Cardno Report to the respondent. It is the evidence of Mr Healey, an experienced legal practitioner and the current Secretary and Chair of the Executive Committee that the purported assignment is not effective. In addition, there is evidence before the Tribunal that the author of the Cardno Report communicated by email on 22 August 2014 that he had been instructed by the applicant’s solicitors not to grant permission for the respondent to be able to rely on contents of the report.

34. The applicant further submits that the author of the Cardno Report is not a party to the proceedings and there is no obligation to assign the benefit of the Cardno Report on Cardno by Order 1 of the Adjudicator Charles. It may do so of its own volition, however, the applicant is unable to do more than that.

35. The Tribunal is satisfied on the evidence before it that the purported assignment of 28 May 2014 was not effective and it was reasonable for the respondent to require the assignment to be in an effective form, all the more so, considering the understanding given to the respondent by Cardno, that the applicant had instructed it not to assign the benefit of the report.

36. The Tribunal is not satisfied that either the applicant or the respondent has complied with the Order 1. The applicant’s compliance with Order 1 was a condition precedent for the respondent’s compliance with the order. The applicant failed to effectively assign the benefit of the Cardno Report to the respondent. The respondent was frustrated in the performance of its obligations by the applicants failure to comply with the order.

37. The Tribunal is satisfied that the Order 1 of Adjudicator Charles should revoked as its purpose is now redundant with the passing of time.

Substituted Order 2 of the consent orders

38. Substituted Order 2 provides:

Pursuant to section 138 of the Strata Schemes Management Act 1996, the respondent is to forthwith repair the common property in accordance with the report of Doug McMIllan dated 24 February 2012, such repairs to be consistent in materials, workmanship and appearance with the rest of the common property in SP 30194.

39. The applicant’s complaint is that the respondent failed to comply with the order “forthwith” or at all.

40. The applicant submits that her evidence supports her contention that the respondent “unreasonably delayed the repair works”. That evidence includes, an acknowledgement at the Annual General Meeting of the Owners Corporation on 24 July 2014 that the Chair of the meeting had not read the Cardno Report; a lack of good faith that the respondent took no steps to contact the nominated contractor; the respondent had not raised a levy for the cost of the repair work; the respondent failed to prepare a scope of works based on the Cardno Report immediately upon the making of the consent orders; delaying the discussion of the prospect of a special levy being raised until a meeting on 30 July 2014.

41. The original application for an adjudicators determination sought orders, including, that a “Compulsory Manager to be appointed pursuant to s162 (1)(a) and s162 (2) (a) Strata Schemes Management Act (1996)”.

42. On the evidence before him, Adjudicator Charles was not satisfied that the applicant’s evidence met the onus of proof required for the compulsory appointment of a strata manager.

43. The Tribunal has already determined that in the nature of a renewal of the application additional evidence may be adduced. That evidence was not available to the adjudicator at the time that he made his determination to dismiss the application for appointment of the strata manager.

44. Section 162 of the Act provides:

Order appointing strata managing agent to exercise certain functions

(1) Order appointing strata managing agent to exercise functions of owners corporationAn Adjudicator may by order appoint a person as a strata managing agent:

(a)  to exercise all the functions of an owners corporation, or

(b)  to exercise specified functions of an owners corporation, or

(c)  to exercise all the functions other than specified functions of an owners corporation.

(2) Order may confer other functions on strata managing agentAn Adjudicator may also order, when appointing a strata managing agent under this section, that the strata managing agent is to have and may exercise:

(a)  all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or

(b)  specified functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or

(c)  all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation other than specified functions.

(3) Order may be made without application in certain circumstancesAn Adjudicator may make an order under this section, without an application having been made for the order, but only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily.

(3A) Order may be made on application in certain circumstancesAn Adjudicator may make an order under this section, on application, but only if satisfied that:

(a)  the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily, or

(b)  an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or

(c)  an owners corporation has failed to perform one or more of its duties, or

(d)  an owners corporation owes a judgment debt.

(4) Qualifications of person appointedA person appointed as a strata managing agent under this section must:

(a)  hold a strata managing agent’s licence issued under the Property, Stock and Business Agents Act 2002, and

(b)  have given consent in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the chief executive officer of the corporation.

(c)  (Repealed)

(5) Terms and conditions of appointment

A strata managing agent may be appointed under this section on such terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) as may be specified in the order making the appointment.

(6) Revocation of certain appointments

An order made in the circumstances referred to in subsection (3) may be revoked or varied by an Adjudicator on the application of a person entitled to make an application for an order under this section and, unless sooner revoked, ceases to have effect at the expiration of such period after its making (not exceeding 12 months) as is specified in the order.

(7) Who may make an application?An application for an order under this section may be made only by:

(a)  a person who obtained an order under this Act that imposed a duty on the owners corporation or on its executive committee, chairperson, secretary or treasurer and that has not been complied with, or

(b)  a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme, or

(c)  the authority having the benefit of a positive covenant that imposes a duty on the owners corporation, or

(d)  a judgment creditor to whom the owners corporation owes a judgment debt.

45. For an adjudicator to appoint a manager under the s162(3A) of the Act they must be satisfied that the criteria set out in that section applies.

46. At the time that Adjudicator Charles made his decision, the criteria in s162(3A)(b) was not available to him to be considered as there was no order made under the Act.

47. It is now submitted by the applicant the Tribunal on the hearing of the renewal of the appeal against the determination of the decision of the adjudicator that it must take into consideration the added criteria of the respondent failing to comply with the consent order made under the Act in its decision of 28 May 2014.

45. The Tribunal considers each of the criteria in s162(3A) and the parties respective submission and evidence adduced as follows:

46. The management structure of a strata scheme is not functioning or is not functioning satisfactorily:

1. The applicant submits that evidence of the Owners Corporation dysfunction is:

1. That the respondent acted unreasonably in relation to the replacement of the former strata manager, in particular as it had excluded the applicant from being the contact person, as she was secretary of the respondent until 24 July 2014;

2. That the respondent has refused the applicant access to documents concerning the affairs of the respondent;

3. The applicants enquiries about the conduct of the Owners Corporation were “treated with disdain”;

4. That the applicants dealings with the respondent are perceived by the respondent as being in a “bullying and intimidatory tone”, which the applicant denies;

5. In about June 2014, contrary to s80D of the Act, the other owners of the lots agreeing to engage Gadens to act for the respondent in respect of the Supreme Court proceedings brought by the applicant against the respondent.

6. The circumstances surrounding the legal advice given to the respondent by Ms Crittenden on 12 December 2012;

7. Interference by the respondent in the applicant’s ability to fulfil her function as secretary before her removal on 24 July 2014;

8. The exclusion of the applicant from participating in the affairs of the respondent;

9. The acquiescence of the respondent to other lot owners using common property for exclusive use without approval of the respondent;

2. The respondent submits that some of these issues raised by the applicant were before the adjudicator who determined that the applicant had not established any failure on the part of the respondent or its strata manager to perform their duties as would warrant the appointment of a replacement managing agent.

1. Similarly, the additional matters raised by the applicant since the date of the adjudication do not support the applicant’s contention that the management structure is not functioning.

2. Relevantly, a new strata manager was appointed on or about September 2014 who has the responsibility of overseeing the repairs the subject of the consent orders of 28 May 2014. There is no evidence before the Tribunal of the adverse performance of the management structure or failure by the new strata manager to function satisfactorily.

3. On the evidence before the Tribunal on this renewal of the application, the Tribunal is not satisfied that the applicant has satisfied her onus of proof that the management structure of the strata scheme is not functioning or is not functioning satisfactorily.

50. The owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act

1. The applicant submits that her evidence supports her contention that there has been a failure by the respondent to comply with the consent orders made on 28 May 2014 relevant to her assertion are as follows:

1. As at the date of her submissions the repair work had not been carried out;

2. In June 2014 the respondent claimed that the scope of work needed to be determined and additional water proofing quotes obtained, the applicant asserts this as a repudiation of the terms of settlement which were the basis of the consent orders;

3. The conduct of the respondent since the consent orders demonstrates a failure to comply with the orders:

1. The issue of the scope of works is inconsistent with the repairs to be undertaken “forthwith” as agreed in the consent orders;

2. The reliance by the applicant on the promises by the respondent to carry out the repair work was consequent upon her agreeing to her appeal being dismissed;

3. The subsequent issue of the scope of works formed no part of the terms of settlement;

4. The respondent unreasonably delayed the commencement of the works;

5. The lack of good faith on the part of the respondent in failing to take steps to approach Premier Waterproofing prior to the present application being commenced and then it was the applicant who obtained the updated quote and contract from the contractor, which she sent to the respondent;

6. The respondent took no steps to raise the special levy to fund the works despite there being an Annual General Meeting on 24 July 2014;

7. If a scope of works is needed then if the respondent had acted in good faith it would have obtained it immediately after the making of the consent orders;

2. The respondent submits that:

1. It was the proper process for it to satisfy itself that the quote of Premier Waterproofing given in 2012 was current and competitive;

2. After a selection process, in which the applicant participated, a new strata manager was identified.

3. On 4 August 2014 notice was given to the lot owners of an extraordinary general meeting (“EGM”) of the Owners Corporation to consider:

1. Imposing a special levy to carry out the repair works;

2. The execution of a contract with Premier Waterproofing Limited to carry out the repair works;

3. The existing strata managers agreement to be terminated;

4. The appointment of Bright & Duggan as strata manager.

4. On 11 August 2014 the EGM resolved:

1. to impose the special levy for the Premier works to be carried out in the sum of $100,000 to be paid within one month;

2. to approve and execute the building contract with Premier Waterproofing;

3. to terminate existing strata manager’s contract and appoint Bright and Duggan as the new strata manager.

5. The respondent’s evidence is that at the date of the final hearing day, the works carried out by Premier Waterproofing were substantially complete and that the issue of replacement of the verandah posts was being considered by engineers on the day of the hearing with works to be carried out subject to the engineers investigation, and if necessary a further levy would need to be raised.

1. On the evidence before the Tribunal it is satisfied that the works are nearly complete at the time of the final days hearing. The respondent may not have acted in accordance with the applicant’s understanding of the meaning of “forthwith”.

2. The exigencies of the respondent being an owners corporation and the disruption to the process by the expectations of the applicant, the change of office bearers, strata managers and updating contractors quotes and the raising of a special levy, are such that the time taken was necessary and within the realm of a reasonable time.

3. The applicant has not satisfied the Tribunal that the owners corporation has failed to comply with the consent order requiring the carrying out of the works. The time taken by the respondent to comply with Substituted Order 2 was reasonable having regard to the use of the word “forthwith” in the order.

51. An owners corporation has failed to perform one or more of its duties,

1. The applicant submits that the respondent has failed to perform one or more of its duties and supports this claim by submissions and evidence:

1. The respondent has failed in its duty to maintain and keep the common property in good order and repair as required by s62(1) of the Act;

2. The respondent has known of the relevant problems with the property since March 2009 and identified in the Cardno Report obtained by the applicant in February 2012;

3. The respondent has failed to comply with its responsibilities under s80D of the Act in relation to obtaining legal advice or legal services by retaining legal practitioners in September 2013 and June 2014 in that no resolution of has been passed by the respondent in general meeting to approve the retention of legal services.

2. The respondent submits that with the works now carried out and nearing completion that the respondent has fulfilled its duty to maintain and keep the common property in good order and repair. It also submits that “the circumstances surrounding the passing or otherwise of a resolution pursuant to s 80D of the Act …arise from the Application of the applicant and compliance by the respondent with the orders that were made”.

3. The matter now before the Tribunal is the culmination of proceedings brought by the applicant before the Tribunal in the nature of an application for interim orders of an adjudicator (dismissed), an application for substantive orders of an adjudicator (withdrawn and dismissed), a further application for substantive orders of an adjudicator (dismissed), an appeal against the adjudicator’s decision (resolved by consent orders) and the application for renewal now before the Tribunal. The applicant has also initiated proceedings in the Supreme Court, which have now been withdrawn.

4. The history of the dispute between the applicant and the respondent has created an environment of constant disagreement which has rolled along so far as the matters before the Tribunal are concerned since March 2012.

5. The Tribunal accepts the respondents submission supported by the Court of Appeal decision of 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan 73943 [NSW 4092014] that legal retainers can be ratified once the final extent of the legal fees are known.

52. The appointment of a strata manager by the Tribunal is to be regarded as a serious measure. It takes away some or all of the owners’ rights to self-management for a period. Accordingly, an order pursuant to section 162 of the Act can only be made if the Adjudicator is satisfied that the requirements of section 162 have been met.

53. The Tribunal has considered whether the provisions of section 162(3)(A) apply in this case. Pursuant to section 162(3)(A) an order appointing a compulsory manager may be made if the Tribunal is satisfied that the management structure of the strata scheme is not functioning or is not functioning satisfactorily, if the Owners Corporation has failed to perform one or more of its duties or if the Owners Corporation owes a judgement debt.

54. The applicant has failed to discharge the onus which rests on her, namely to demonstrate why the owners corporation is not functioning satisfactorily. Alternatively, the onus rests on the applicant to establish why certain functions have not been discharged satisfactorily. On the evidence adduced by the applicant the Tribunal is not satisfied that the owner’s corporation is derelict in its duty to repair or maintain the property or is mismanaged financially.

55. On the evidence before the Tribunal it does do not find that the scheme is dysfunctional.

56. It is apparent that the applicant is dissatisfied with the management of the scheme, but that is not sufficient reason to support a finding that the owner’s corporation is dysfunctional. It is holding general and executive meetings, passing resolutions, and generally carrying out its obligations under the Act.

57. On the evidence before Tribunal it does not find that the bases for appointment of a strata manager have been established.

Proposed Orders 2, 3 and 4

58. As to proposed orders 2, 3 and 4 the applicant is limited in what orders she may seek by the extent of the original application for adjudication. In that adjudication the applicant sought:

[A] Compulsory Manager to be appointed pursuant to s162(1)(a) and 162(2)(a) Strata Schemes Management Act (1996), as:

The management structure of the Strata scheme is not functioning or is not functioning satisfactorily,

An owner’s corporation has failed to perform one or more of its duties.

1 Cost of Cardno report to be reimbursed in full to Unit 1; the cost to be borne by the Strata in proportion to unit liability.

2 That all communication between the Strata manager and Owners/Executive Committee be provided to Katrina Knell and placed on Strata file.

3 Any such order to settle disputes or rectify complaints pursuant to s 138 Strata Schemes Management Act (1996) as to matters referred to in this application.

59. The applicant contends that the orders sought by the applicant in these renewed proceedings are orders within the meaning of cl 8(4) of Sch 4 of the NCAT Act as they are orders that “could have been made when the matter was originally determined”.

60. The respondent contends that the available relief on a renewed application is not limited to the original orders, but “submits that the inquiry is not as broad as that contended by the Applicant” and that the application for renewal is a “mere process to enforce the orders”.

61. The issue of costs in the appeal against the adjudicator’s decision was addressed in order 4 of the consent orders. The applicant submits that the need for proposed order 3 is required to give effect to that order 4.

62. The respondent submits that the costs of the respondent have been paid by the owners of lot 2, 3, and 4, not including Lot 1.

63. In respect of proposed order 3 the Tribunal is not satisfied that there is any reason to interfere with consent order 4.

64. As to proposed orders 2 and 4, these flow from the evidence adduced by the applicant in her witness statement of 4 August 2014 and relate to the cost of legal advice provided by Ms Crittenden to the respondent in respect of proposed changes to a by law to facilitate the applicant’s proposals with respect to Lot 1.

65. The applicant may adduce further evidence in a renewal application. However, the orders in respect of a dispute about the cost of the legal advice incurred by the respondent consequent on the applicants action in 2012 is, in the view of the Tribunal beyond the intent and purpose of renewal proceedings under clause 8. The evidence must be relevant to the application, that is the original application and as the applicant concedes it “will be necessary for an applicant to demonstrate that earlier orders have not been complied with”. That is not the case in this matter.

66. The Tribunal is not satisfied that the applicant is entitled to seek order 2 and 4 in this renewed application.

67. Accordingly, pursuant s 181 of the Strata Schemes Management Act 1996:

1. Order 1 of the Adjudicator’s order in SCS 13/15641 dated 18 June 2013 is revoked.

2. The application for renewal of the appeal against the Adjudicator’s Order is dismissed.

P Boyce

Senior Member

Civil and Administrative Tribunal of New South Wales

13 January 2015

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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: 25 March 2015