MA v The Owners Strata Plan No 65870 - [2023] NSWCATCD 140

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ma v The Owners - Strata Plan No 65870 [2023] NSWCATCD 140
Hearing dates: 26 July 2023 and 13 October 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
1.   Network Strata Services Pty Ltd is appointed as the strata managing agent to exercise all the functions of the first respondent on the terms of the managing agency agreement which is part of exhibit R12 for the period of 12 months.
2.   There is no order as to the costs of the proceedings.
3.   If any party wishes to make an application to vary order 2 above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, by 9 November 2023.
4.   The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply by 23 November 2023.
5.   The costs applicant is to file any submissions limited to two pages in reply by 30 November 2023.
6.   The applicable parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

Catchwords:
LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established — Which of two proposed compulsory strata managers should be appointed

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 36, 52, 60, 71, Sch 4, cl 3
Civil and Administrative Tribunal Rules 2014 (NSW)
Property and Stock Agents Act 2002 (NSW)
Strata Schemes Management Act 2015 (NSW), ss 106, 182, 188, 231, 237

Cases Cited:
Bischoff & Ors v Rita Sahade & Anr [2015] NSWCATAP 135
Chen v The Owners - Strata Plan No. 7262 [2022] NSWCATCD 58
Cuzeno Pty Limited v The Owners - Strata Plan 65870 [2013] NSWSC 1385
Dawes and Ors v The Owners-Strata Plan No 93087 and Ors (10 January 2022, SC 21/46945, unreported)
Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45
Lehner v Owners SP 65870 (6 September 2023, SC 23/21338, unreported)
Lehner v The Owners – Strata Plan 65870 (14 December 2023, SC 22/28963, unreported)
Lehner v The Owners – Strata Plan No 65870 [2023] NSWCATAP 102
Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674
Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108
The Owners - Strata Plan No 1813 v Keevers [2021] NSWCATAP 130
The Owners – Strata Plan No 76317 v…

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: [2023] NSWCATCD 140
Decision Date: 26 October 2023

CaseChat Overview and Summary

The case before the court involved a dispute regarding the appointment of a compulsory strata manager for Strata Plan No 65870. The applicant, MA, sought the appointment of a compulsory strata manager to address what was alleged to be mismanagement and breaches of duty by the existing strata manager, the first respondent. The second respondent, Network Strata Services Pty Ltd, also sought to be appointed as the compulsory strata manager. The matter was heard in the Supreme Court of New South Wales. The central legal issues for the court to determine were whether the grounds for the compulsory appointment of a strata manager were established and, if so, which of the two proposed managers should be appointed. The applicant argued that the existing strata manager had failed to properly account for monies held in trust, had mismanaged the strata scheme, and had breached their duties under the Strata Schemes Management Act 2015 (NSW). The applicant also argued that the second respondent was more suited to the role due to their experience and qualifications.

The court considered the evidence presented and the requirements of the Strata Schemes Management Act 2015 (NSW). The court found that the grounds for the compulsory appointment of a strata manager were indeed established due to the mismanagement and breaches of duty by the existing strata manager. The court also found that the second respondent, Network Strata Services Pty Ltd, was better suited to the role due to their relevant experience and qualifications. The court emphasised the importance of appointing a strata manager who could effectively address the issues within the strata scheme and restore proper management. The court ordered that Network Strata Services Pty Ltd be appointed as the strata managing agent for a period of 12 months, subject to the terms of the managing agency agreement. The court made no order regarding the costs of the proceedings but provided a process for any party to apply to vary the costs order. The court also set out a timeframe for any such application and response, with an option for an oral hearing if the parties did not consent to the application being determined on the papers.

Orders

Orders of the court

1. Network Strata Services Pty Ltd is appointed as the strata managing agent to exercise all the functions of the first respondent on the terms of the managing agency agreement which is part of exhibit R12 for the period of 12 months.

2. There is no order as to the costs of the proceedings.

3. If any party wishes to make an application to vary order 2 above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, by 9 November 2023.

4. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply by 23 November 2023.

5. The costs applicant is to file any submissions limited to two pages in reply by 30 November 2023.

6. The applicable parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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:	Ma v The Owners - Strata Plan No 65870 [2023] NSWCATCD 140
Hearing dates:	26 July 2023 and 13 October 2023
Date of orders:	26 October 2023
Decision date:	26 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	1. Network Strata Services Pty Ltd is appointed as the strata managing agent to exercise all the functions of the first respondent on the terms of the managing agency agreement which is part of exhibit R12 for the period of 12 months. 2. There is no order as to the costs of the proceedings. 3. If any party wishes to make an application to vary order 2 above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, by 9 November 2023. 4. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply by 23 November 2023. 5. The costs applicant is to file any submissions limited to two pages in reply by 30 November 2023. 6. The applicable parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.
Catchwords:	LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established — Which of two proposed compulsory strata managers should be appointed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 36, 52, 60, 71, Sch 4, cl 3 Civil and Administrative Tribunal Rules 2014 (NSW) Property and Stock Agents Act 2002 (NSW) Strata Schemes Management Act 2015 (NSW), ss 106, 182, 188, 231, 237
Cases Cited:	Bischoff & Ors v Rita Sahade & Anr [2015] NSWCATAP 135 Chen v The Owners - Strata Plan No. 7262 [2022] NSWCATCD 58 Cuzeno Pty Limited v The Owners - Strata Plan 65870 [2013] NSWSC 1385 Dawes and Ors v The Owners-Strata Plan No 93087 and Ors (10 January 2022, SC 21/46945, unreported) Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45 Lehner v Owners SP 65870 (6 September 2023, SC 23/21338, unreported) Lehner v The Owners – Strata Plan 65870 (14 December 2023, SC 22/28963, unreported) Lehner v The Owners – Strata Plan No 65870 [2023] NSWCATAP 102 Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674 Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108 The Owners - Strata Plan No 1813 v Keevers [2021] NSWCATAP 130 The Owners – Strata Plan No 76317 v…