McGrath v The Owners - Strata Plan No. 13631 - [2022] NSWCATCD 60

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McGrath v The Owners – Strata Plan No. 13631 [2022] NSWCATCD 60
Hearing dates: 23 March 2022
Date of orders: 05 May 2022
Decision date: 05 May 2022
Jurisdiction: Consumer and Commercial Division
Before: M Deane, Senior Member
Decision:
(1) The application for the appointment of a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed.
(2) Any application for costs by the Respondent under s 60 of the Civil and Administrative Tribunal Act 2013 is to be made in the following manner:
(a) The respondent is to file and serve written submissions (not exceeding 5 pages) on or before 14 days from the date of this decision. The submissions are to include whether or not the respondent consents to the issue of costs being determined on the papers.
(b) The applicant is to file and serve written submissions in reply (not exceeding 5 pages) on or before 14 days thereafter. The submissions are to include whether or not the applicant consents to the issue of costs being determined on the papers
(c) Subject to the submission of the parties, the Tribunal will determine the issue of costs on the basis of the written submissions received and without a further oral hearing, in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013.

Catchwords:
LAND LAW — Strata title — Strata managing agent — Compulsory appointment of strata managing agent

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)

Cases Cited:
Bischoff v Sahade [2015] NSWCATAP 135
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45
Italian Forum Limited v Owners - Strata Plan 60919 [2012] NSWSC 895
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Siewa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157
UniLodge Australia Pty Ltd v The Owners Strata Plan 54026 [2020] NSWCATCD, 29 April 2020

Texts Cited:
Nil

Category: Principal judgment
Parties: Peter McGrath (Applicant)
The Owners – Strata Plan No. 13631(Respondent)
Representation:
M Green (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)

File Number(s): SC 21/46692
Publication restriction: nil

REASONS FOR DECISION

Background

The Applicant sought orders under s 237 of the Strata Schemes Management Act 2015 (the SSMA) for Strata Titles Management (STM) to exercise all the functions of the owners corporation for SP13631 (s 237(1)(a) SSMA) and to exercise all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation (s 237(2)(b) SSMA).

Overview of Submissions

The Applicant contended that STM should be compulsorily appointed because:

the management of the strata scheme was not functioning satisfactorily, due to:

failure to comply with the requirement under s 103 of the SSMA to hold general meetings to approve legal services;

taking legal action which was unnecessary or not in the interests…

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.

Continue reading McGrath v The Owners - Strata Plan No. 13631

Details

AGLC: McGrath v The Owners - Strata Plan No. 13631 [2022] NSWCATCD 60
Case: [2022] NSWCATCD 60
Decision Date: 05 May 2022

CaseChat Overview and Summary

The applicants, McGrath, sought the appointment of a compulsory strata managing agent for Strata Plan No. 13631, pursuant to section 237 of the Strata Schemes Management Act 2015. They alleged that the existing strata managing agent had failed to perform its duties properly, leading to various issues within the strata scheme. The respondents, the Owners of the strata plan, opposed the application, arguing that the existing strata managing agent was adequately performing its duties and that the applicants' claims were not substantiated.

The primary legal issue before the court was whether the applicants had demonstrated sufficient grounds to warrant the compulsory appointment of a new strata managing agent. This involved examining the conduct and performance of the existing strata managing agent, as well as the applicants' allegations of mismanagement and breaches of duty. The court also needed to consider whether the existing strata managing agent was adequately fulfilling its responsibilities under the Strata Schemes Management Act 2015.

The court found that the applicants had not provided adequate evidence to support their claims of mismanagement and breaches of duty by the existing strata managing agent. The applicants' allegations were largely based on subjective opinions and did not meet the threshold required for the compulsory appointment of a new strata managing agent. The court emphasised that such appointments should only be made in cases of clear and substantial failure by the existing agent to perform its duties. As the applicants had not demonstrated such failure, the application was dismissed. The court also set out a process for the determination of costs between the parties, involving written submissions and potentially a final determination without a further hearing.

The court's final orders were that the application for the compulsory appointment of a strata managing agent be dismissed, and that the parties submit written arguments regarding the costs of the proceeding, with the possibility of a final determination on the costs without a further hearing.

Orders

Orders of the court

(1) The application for the appointment of a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed.

(2) Any application for costs by the Respondent under s 60 of the Civil and Administrative Tribunal Act 2013 is to be made in the following manner:

(a) The respondent is to file and serve written submissions (not exceeding 5 pages) on or before 14 days from the date of this decision. The submissions are to include whether or not the respondent consents to the issue of costs being determined on the papers.

(b) The applicant is to file and serve written submissions in reply (not exceeding 5 pages) on or before 14 days thereafter. The submissions are to include whether or not the applicant consents to the issue of costs being determined on the papers

(c) Subject to the submission of the parties, the Tribunal will determine the issue of costs on the basis of the written submissions received and without a further oral hearing, in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013.

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:	McGrath v The Owners – Strata Plan No. 13631 [2022] NSWCATCD 60
Hearing dates:	23 March 2022
Date of orders:	05 May 2022
Decision date:	05 May 2022
Jurisdiction:	Consumer and Commercial Division
Before:	M Deane, Senior Member
Decision:	(1) The application for the appointment of a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed. (2) Any application for costs by the Respondent under s 60 of the Civil and Administrative Tribunal Act 2013 is to be made in the following manner: (a) The respondent is to file and serve written submissions (not exceeding 5 pages) on or before 14 days from the date of this decision. The submissions are to include whether or not the respondent consents to the issue of costs being determined on the papers. (b) The applicant is to file and serve written submissions in reply (not exceeding 5 pages) on or before 14 days thereafter. The submissions are to include whether or not the applicant consents to the issue of costs being determined on the papers (c) Subject to the submission of the parties, the Tribunal will determine the issue of costs on the basis of the written submissions received and without a further oral hearing, in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013.
Catchwords:	LAND LAW — Strata title — Strata managing agent — Compulsory appointment of strata managing agent
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW)
Cases Cited:	Bischoff v Sahade [2015] NSWCATAP 135 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45 Italian Forum Limited v Owners - Strata Plan 60919 [2012] NSWSC 895 Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 Siewa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157 UniLodge Australia Pty Ltd v The Owners Strata Plan 54026 [2020] NSWCATCD, 29 April 2020
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Peter McGrath (Applicant) The Owners – Strata Plan No. 13631(Respondent)
Representation:	M Green (Respondent) Solicitors: Madison Marcus Law Firm (Applicant)
File Number(s):	SC 21/46692
Publication restriction:	nil