Neri v The Owners Strata Plan No. 91204 - [2021] NSWCATCD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Neri v The Owners - Strata Plan No. 91204 [2021] NSWCATCD 164
Hearing dates: 29 March 2021
Date of orders: 29 April 2021
Decision date: 29 April 2021
Jurisdiction: Consumer and Commercial Division
Before: M Deane, Senior Member
Decision:
(1) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that by-law 26.4 of SP 91204 is invalid from the date of registration.
(2) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered.
(3) Under s 232(1)(a) of the Strata Schemes Management Act 2015, the respondent is ordered to remove levy numbers 4, 5, 6, 7, 15, 16, 17, 20 22 and 23 imposed on the applicant’s owner ledger for “illegal parking” and, if paid, to refund to the applicant immediately those fees and any interest charged as a result of those fees.

Catchwords:
LAND LAW – strata title – by-laws – whether by-laws were changed in accordance with s141 of the Strata Schemes Management Act 2015 – whether the owners corporation had power to make a by-law imposing penalties for parking in breach of the by-laws – whether the by-law should be declared invalid under s 150 of the Strata Schemes Management Act 2015 – whether parking fees or the expense for issuing a notice can be debited to the owner ledger.

Legislation Cited:
Strata Schemes Management Act 2015, ss 9, 134, 136, 141, 146, 147, 150, Schedule 1, cl 23
Strata Schemes Management Act 1996, s 41, 43
Strata Schemes Development Act 2015, s 40
Civil and Administrative Tribunal Act 2013, s 38(3)(ii)

Cases Cited:
Cooper and Another v Owners – Strata Plan No 58068 [2020] NSWCA 250;
Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260
Owners of Strata Plan No. 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202
The Owners – Strata Plan 3397 v Tate [2007] NSWCA 207
The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158

Category: Principal judgment
Parties: Martiniano Jake III Neri (applicant)
The Owners - Strata Plan No. 91204 (respondent)
Representation: Applicant: self-represented
Respondent: Tony Kairouz – Strata Manager

File Number(s): SC 20/41370
Publication restriction: Nil

REASONS FOR DECISION

Background

The applicant is the owner of a lot in SP 91204. He sought relief from “fees” which had been imposed against him by the respondent due to purported breaches of the strata by-laws regarding parking in visitor parking and on common property.
The following outline is based on the material before the Tribunal, including evidence at the hearing.
On…

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 Neri v The Owners Strata Plan No. 91204

Details

AGLC: Neri v The Owners Strata Plan No. 91204 [2021] NSWCATCD 164
Case: [2021] NSWCATCD 164
Decision Date: 29 April 2021

CaseChat Overview and Summary

The case of Neri v The Owners Strata Plan No. 91204 involved a dispute between the applicant, Neri, and the respondents, the owners corporation of Strata Plan No. 91204, over the validity of a by-law concerning parking within the strata scheme. The dispute came before the Civil and Administrative Tribunal of New South Wales, which was tasked with determining whether the by-laws were altered in compliance with the Strata Schemes Management Act 2015, and whether the owners corporation had the authority to impose penalties for parking violations. Furthermore, the Tribunal had to decide if the by-law should be declared invalid, and if parking fees or the expenses for issuing notices could be debited to the owner ledger.

The primary legal issues revolved around the procedural validity of the by-law changes and the substantive authority of the owners corporation to impose penalties. Neri argued that the by-laws were not changed in accordance with section 141 of the Act, and that the owners corporation did not have the power to impose parking penalties. Additionally, Neri contended that the by-law should be declared invalid under section 150 of the Act, and that the parking fees or the expense for issuing notices should not be debited to the owner ledger. The owners corporation maintained that the by-law changes were valid and that they had the authority to impose penalties for parking violations.

The Tribunal found that the by-law changes were not made in compliance with section 141 of the Act, as the owners corporation did not follow the required procedures. Consequently, the Tribunal declared the by-law invalid under section 150 of the Act. The Tribunal also held that the owners corporation did not have the power to impose penalties for parking violations, and that the parking fees or the expense for issuing notices should not be debited to the owner ledger. As a result, the Tribunal ordered the owners corporation to remove certain levy numbers imposed on Neri's owner ledger for "illegal parking" and to refund any fees and interest charged as a result of those fees.

In summary, the Tribunal ruled in favour of Neri, declaring the contested by-law invalid, ordering the removal of penalties from Neri's owner ledger, and mandating the owners corporation to refund any related fees and interest. The Tribunal's decision underscores the importance of procedural compliance in the alteration of by-laws within strata schemes and the necessity for owners corporations to act within the bounds of their statutory authority when imposing penalties.

Orders

Orders of the court

(1) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that by-law 26.4 of SP 91204 is invalid from the date of registration.

(2) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered.

(3) Under s 232(1)(a) of the Strata Schemes Management Act 2015, the respondent is ordered to remove levy numbers 4, 5, 6, 7, 15, 16, 17, 20 22 and 23 imposed on the applicant’s owner ledger for “illegal parking” and, if paid, to refund to the applicant immediately those fees and any interest charged as a result of those fees.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Neri v The Owners - Strata Plan No. 91204 [2021] NSWCATCD 164
Hearing dates:	29 March 2021
Date of orders:	29 April 2021
Decision date:	29 April 2021
Jurisdiction:	Consumer and Commercial Division
Before:	M Deane, Senior Member
Decision:	(1) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that by-law 26.4 of SP 91204 is invalid from the date of registration. (2) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered. (3) Under s 232(1)(a) of the Strata Schemes Management Act 2015, the respondent is ordered to remove levy numbers 4, 5, 6, 7, 15, 16, 17, 20 22 and 23 imposed on the applicant’s owner ledger for “illegal parking” and, if paid, to refund to the applicant immediately those fees and any interest charged as a result of those fees.
Catchwords:	LAND LAW – strata title – by-laws – whether by-laws were changed in accordance with s141 of the Strata Schemes Management Act 2015 – whether the owners corporation had power to make a by-law imposing penalties for parking in breach of the by-laws – whether the by-law should be declared invalid under s 150 of the Strata Schemes Management Act 2015 – whether parking fees or the expense for issuing a notice can be debited to the owner ledger.
Legislation Cited:	Strata Schemes Management Act 2015, ss 9, 134, 136, 141, 146, 147, 150, Schedule 1, cl 23 Strata Schemes Management Act 1996, s 41, 43 Strata Schemes Development Act 2015, s 40 Civil and Administrative Tribunal Act 2013, s 38(3)(ii)
Cases Cited:	Cooper and Another v Owners – Strata Plan No 58068 [2020] NSWCA 250; Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 Owners of Strata Plan No. 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 The Owners – Strata Plan 3397 v Tate [2007] NSWCA 207 The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158
Category:	Principal judgment
Parties:	Martiniano Jake III Neri (applicant) The Owners - Strata Plan No. 91204 (respondent)
Representation:	Applicant: self-represented Respondent: Tony Kairouz – Strata Manager
File Number(s):	SC 20/41370
Publication restriction:	Nil