McClymont v The Owners Strata Plan No 12139

The case of McClymont v The Owners Strata Plan No 12139 involved the applicants, the Owners Corporation for Strata Plan No 12139, seeking to recover legal costs and disbursements incurred in enforcing a judgment for unpaid contributions and interest. The dispute was heard in the Small Claims Division of the Local Court of New South Wales. The applicants argued that they were entitled to recover these additional costs beyond those covered by a costs order made in the earlier proceedings, as well as costs related to bankruptcy proceedings, under section 80 of the Strata Schemes Management Act 1996 (NSW).

The central legal issue was whether the term "expenses" in section 80 of the Act included legal costs and disbursements incurred by the owners corporation in enforcing a judgment, and if these could be claimed in separate proceedings. The Court had to determine the correct interpretation of section 80 in light of the previous decisions in Coshott v The Owners of Strata Plan No. 48892 and Owners of Strata Plan 36131 v Dimitriou. The Court of Appeal in Dimitriou held that the term "expenses" did include legal costs and disbursements, but that such claims had to be made in the same proceedings as the claim for the unpaid contributions.

The Court found that the Dimitriou decision authoritatively established that legal costs and disbursements were recoverable under section 80, but only in the same proceedings as the claim for the unpaid contributions. The Court rejected the applicants' argument that additional legal expenses related to bankruptcy proceedings were separable debts recoverable under section 80 in separate proceedings. The Court held that the interpretation of section 80 in Coshott was no longer good authority following Dimitriou.

The application by the applicants to recover additional legal costs and disbursements was dismissed. The Court ordered that the applicants were to pay the costs of the respondent as agreed or taxed.