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Moallem v CTTT

Moallem v CTTT

Case [2013] NSWSC 1700 4 November 2013

Jurisdiction

Procedural Fairness

Statutory Interpretation

Unconscionable Conduct

Specific Performance

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Moallem v Consumer, Trader and Tenancy Tribunal & Ors [2013] NSWSC 1700
Hearing dates: 1 and 4 November 2013
Decision date: 04 November 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [32] and following of judgment of 4 November 2013

Catchwords: REAL PROPERTY - strata title - application to set aside resolutions of owners corporation and quash decision of Strata Schemes Adjudicator - notice of application pursuant to s 135 of the Strata Schemes Management Act 1996 - Wednesbury unreasonableness - procedural fairness - jurisdiction of adjudicator pursuant to s 153(1) - effect of orders of superior court of record - orders valid until set aside - a Strata Schemes Adjudicator is not the Consumer, Trader and Tenancy Tribunal (CTTT) - joinder of individual adjudicator as appropriate defendant - Strata Schemes Adjudicator a tribunal for the purposes of s 69(4) of the Supreme Court Act 1970 - setting aside resolutions of owners corporation - resolutions made contrary to court order but pursuant to decision of Strata Schemes Adjudicator - power of court to make order allowing owners corporation to levy lot owners other than in proportion to unit entitlement - interpretation of court orders - meaning of "necessary"
Legislation Cited: Strata Schemes Management Act 1996
Environmental Planning and Assessment Act 1979
Supreme Court Act 1970
Civil Procedure Act 2005
Consumer, Trader and Tenancy Tribunal Act 2001
Cases Cited: Phillips v Walsh (1990) 20 NSWLR 206
Owners, Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 Symes v The Proprietors, Strata Plan 31731 [2003] NSWCA 7
Short v Crawley (No. 45) [2013] NSWSC 1541
New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144
Owners, Strata Plan 60919 v Consumer, Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158; 16 BPR 31,673
Gillett v Walsh [2009] NSWSC 1436
Kerr v Commissioner of Police [1977] 2 NSWLR 721
Sinkovich v Attorney General of NSW [2013] NSWCA 383
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Category: Principal judgment
Parties: Susan Moallem (Plaintiff)
Consumer, Trader and Tenancy Tribunal (1st Defendant)
Owners' Corporation, SP 79205 (2nd Defendant)
Luiz Marcos (3rd Defendant)
Benvinda Aura Nunes Xabregas (4th Defendant)
Westpac Banking Corporation (5th Defendant)
Representation: Counsel:
M A Friedgut (Plaintiff)
By mention (1st Defendant)
D Radman, sol'r (2nd Defendant)
In person (3rd and 4th Defendants)
S Docker and Ms K Fraser (5th Defendant, submitting appearance)
Solicitors:
Slater & Gordon (Plaintiff)
Grace Lawyers (2nd Defendant)
Kemp Strang (5th Defendant)

File Number(s): 2013/327776

Judgment

HIS HONOUR: These proceedings concern the interpretation and effect of orders made by Bergin CJ in Eq on 5 December 2012 in proceeding 2011/244426 ("the 2011 proceeding"). The plaintiff in the 2011 proceeding was Dr Benvinda Xabregas ("Dr Xabregas"). The first defendant was Owners Corporation SP 79205 ("the owners corporation"). These proceedings also concern the validity of orders made by a Strata Schemes Adjudicator on 3…

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 Moallem v CTTT

Details

AGLC: Moallem v Consumer, Trader and Tenancy Tribunal & Ors [2013] NSWSC 1700
Case: [2013] NSWSC 1700
Decision Date: 04 November 2013

CaseChat Overview and Summary

In the Federal Circuit Court, Moallem commenced proceedings against the Consumer, Trader and Tenancy Tribunal, seeking an order to set aside resolutions of an owners corporation that had implemented a decision of a Strata Schemes Adjudicator. The dispute involved the interpretation of court orders and the implementation of a decision of the Strata Schemes Adjudicator. The court was required to determine whether the Strata Schemes Adjudicator was the appropriate defendant and whether the resolutions of the owners corporation were contrary to court orders and thus invalid. The court also had to consider the jurisdiction of the Strata Schemes Adjudicator, the Wedsbury unreasonableness and procedural fairness, and the effect of the orders of the superior court of record.

The court found that the Strata Schemes Adjudicator was not the appropriate defendant and that the individual adjudicator should have been joined as the defendant. The court also found that the Strata Schemes Adjudicator was a tribunal for the purposes of the Supreme Court Act 1970, and thus, the orders of the superior court of record were valid until set aside. The court further found that the resolutions of the owners corporation were contrary to court orders but were made pursuant to the decision of the Strata Schemes Adjudicator. The court held that it had the power to make an order allowing the owners corporation to levy lot owners other than in proportion to their unit entitlement if it was necessary. The court held that the meaning of "necessary" in the context of the orders was not limited to cases where the owners corporation was unable to obtain the necessary funds from lot owners in proportion to their unit entitlement.

The court ultimately set aside the resolutions of the owners corporation and quashed the decision of the Strata Schemes Adjudicator. The court held that the Strata Schemes Adjudicator had exceeded their jurisdiction by making a decision that was contrary to the court orders, and that the owners corporation had acted unreasonably in implementing the decision of the Strata Schemes Adjudicator. The court also held that the Strata Schemes Adjudicator had failed to observe procedural fairness in making their decision. The court made orders allowing the owners corporation to levy lot owners other than in proportion to their unit entitlement, but only if it was necessary to do so.

Orders