Low v The Owners Strata Plan No. 35790 - [2016] FCCA 900

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOW v THE OWNERS STRATA PLAN No. 35790

[2016] FCCA 900

Catchwords:
BANKRUPTCY – Application for review of sequestration order or annulment of bankruptcy – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.52(1), 52(2), 52(4), 153B

Civil Procedure Act 2005 (NSW), s.101
Federal Circuit Court of Australia Act 1999 (Cth), s.104
Strata Schemes Management Act 1996 (NSW), s.78(6)
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), rr.7.04, 7.06

Cases cited:
Ali v Retail Decisions Pty Ltd [2012] FCA 1130
Coshott v Owners of Strata Plan No. 48892 [2006] NSWSC 308
Eykamp v Deputy Commissioner of Taxation [2010] FCA 797
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
O’Farrell v Palicave Pty Ltd (2009) 176 FCR 134; [2009] FCAFC 64
Owners of Strata Plan No. 50164 v O’Connor [2010] FMCA 833
Pattison v Hadjimouratis (2006) 155 FCR 226; [2006] FCAFC 153
Poulson; Ex parte Hempenstall Bros Limited (No 1) (1929) 1 ABC 54
Re Papps; Ex parte Tapp (1997) 78 FCR 524; [1997] FCA 1031
Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders [2003] FCA 1079
Rozenbes v Kronhill (1956) 95 CLR 407 [1956] ALR 1004
Sandell v Porter (1966) 115 CLR 666
Stankiewicz v Plata [2000] FCA 1185
T&S Recoveries Pty Ltd v Skalkos [2004] FCA 816
Totev v Sfar (2008) 167 FCR 193; [2008] FCAFC 35
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Wren v Mahoney (1972) 126 CLR 212; [1972] ALR 307

Applicant:

LAN HEONG LOW

Respondent:

THE OWNERS STRATA PLAN NO. 35790

File Number:

SYG 1663 of 2013

Judgment of:

Judge Barnes

Hearing date:

3 February 2016

Date of Last Submission:

2 March 2016

Delivered at:

Sydney

Delivered on:

22 April 2016

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondent:

J S Mueller & Co, Solicitors

Solicitors for the Trustees in Bankruptcy:

O’Neill Partners

ORDERS

The application for review filed on 7 August 2015 be dismissed.
The orders of the Registrar made on 20 July 2015 be affirmed.
The application for an annulment of the bankruptcy of Lan Heong Low be dismissed.
The petitioning creditor’s costs be paid out of the bankrupt estate in accordance with the Bankruptcy Act 1966 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1663 of 2013

LAN HEONG LOW

Applicant

And

THE OWNERS STRATA PLAN NO. 35790

Respondent

REASONS FOR JUDGMENT

On 20 July 2015 a registrar of this court made a sequestration order against the estate of Lan Heong Low. On 7 August 2015 Ms Low filed an application for review of the sequestration order. While Ms Low’s application was made on the form used for an application for review of a sequestration order, she sought, in the alternative, an annulment of her bankruptcy under s.153B of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act).
After the matter was referred to my docket Ms Low was given the opportunity to file and serve affidavit evidence in support of her application…

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: [2016] FCCA 900
Decision Date: 22 April 2016

CaseChat Overview and Summary

The applicant, Mr. Low, sought to recover damages from the respondent, The Owners Strata Plan No. 35790, for alleged breaches of statutory duties under the *Strata Schemes Management Act 2015* (NSW) and the common law. The dispute concerned the respondent's alleged failure to maintain and repair common property, specifically a balcony and associated waterproofing, which Mr. Low contended caused water damage to his property. The matter was heard in the NSW Civil and Administrative Tribunal (NCAT).

The Tribunal was required to determine whether the respondent had breached its statutory duty to maintain and repair the common property, and if so, whether such breach caused the damage suffered by Mr. Low. Further, the Tribunal had to consider whether the respondent had breached its duty of care at common law in relation to the maintenance of the common property.

Judge Barnes found that the respondent had failed to establish that it had taken all reasonable steps to maintain and repair the common property in accordance with its statutory obligations. The evidence indicated a lack of timely and adequate action in addressing the known issues with the balcony's waterproofing. Consequently, the Tribunal concluded that the respondent had breached its statutory duty and was liable for the resulting damage to Mr. Low's property. The common law duty of care was also considered breached due to the respondent's inaction.

The Tribunal ordered the respondent to pay damages to Mr. Low for the cost of rectifying the water damage to his property.

Orders