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Owners SP 46528 v Hall

Owners SP 46528 v Hall

Case [2009] NSWSC 278 17 April 2009

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CITATION: Owners SP 46528 v Hall [2009] NSWSC 278

HEARING DATE(S): 01.04.09

JUDGMENT DATE :
17 April 2009

JURISDICTION: Common Law Division

JUDGMENT OF: Kirby J

DECISION: (1) The Summons by the plaintiff (the Owners' Corporation) is dismissed.
(2) The plaintiff should pay the defendant's costs on the Summons, such costs not to include Senior Counsel.
(3) The defendant's cross appeal against the order of the Local Court refusing costs is upheld in part.
(4) In lieu thereof, the Owners' Corporation should pay the defendant's costs of the Local Court proceedings, such costs to be assessed on an indemnity basis from 23 November 2007.
(5) The defendant should also have 75% of his costs on the Cross Summons, such costs not to include Senior Counsel.
(6) I order that the defendant, Mr Hall, is exempted from the payment of the costs orders made against the Owners' Corporation in paragraphs (2), (4) and (5) above.

CATCHWORDS: CIVIL LAW - appeal against Magistrate's decision - recovery of unpaid levies by Owners' Corportion and legal costs - STATUTORY CONSTRUCTION - operation and effect of s 80D of the Strata Schemes Management Act 1996 and Reg 12C of the Strata Schemes Management Regulation 1997 - effect of non-compliance with s 80D - mandatory or directory provisions - position of unit holders and position of third parties - constitution of Annual General Meeting - failure to comply with notice requirements - whether meeting a nullity - APPEAL - matters about which no ruling made by Magistrate - no appeal in relation to conclusions expressed in obiter - COSTS - general rule - costs follow the event - Magistrate departed from the general rule - interference with discretion of court below - irrelevant considerations - offer of compromise - indemnity costs.

LEGISLATION CITED: Arbitration (Civil Actions) Act 1983
Strata Schemes Management Act 1996
Legal Profession Act 1987
Strata Schemes Management Regulation 1997
Uniform Civil Procedure Rules 2005
Local Courts Act 1982
Australian Broadcasting Corporation Act 1983 (Cth)
Corporations Act 2001 (Cth)
Trade Practices Act 1974 (Cth)
Interpretation Act 1987

CATEGORY: Principal judgment

CASES CITED: Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1988) 166 CLR 454
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Zizza v Seymour [1976] 2 NSWLR 135
Conder v Silkbard [1999] NSWCA 459
Master Education Services Pty Ltd v Ketchell [2008] HCA 38: (2008) 82 ALJR 1322
Attorney General for NSW v Chidgey [2008] NSWCCA 65
House v The King (1936) 55 CLR 499
Eventang Development (Pyrmont) Pty Limited v The Owners Strata Plan 51573 [2001] NSWSC 452
Owners Strata Plan 30695 v Stratacorp [2005] NSWSC 405
Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Morgan v Johnson (1998) 44 NSWLR 578

PARTIES: The Owners Strata Plan No 46528 (Pl)
John Henry Hall (Def)

FILE NUMBER(S): SC 2008/14682

COUNSEL: D M Bernie (Pl)
C M Harris SC (Def)

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 Owners SP 46528 v Hall

Details

AGLC: Owners SP 46528 v Hall [2009] NSWSC 278
Case: [2009] NSWSC 278
Decision Date: 17 April 2009

CaseChat Overview and Summary

Owners Strata Plan 46528, the Owners' Corporation of a strata scheme, sought an appeal against a decision made by a Magistrate in the County Court of Victoria. The appeal concerned the recovery of unpaid levies by the Owners' Corporation and the associated legal costs. The dispute centred around the statutory provisions under the Strata Schemes Management Act 1996 and the Strata Schemes Management Regulation 1997, specifically the operation and effect of section 80D and Regulation 12C. The key legal issues were whether section 80D contained mandatory or directory provisions, the implications of non-compliance with these provisions, and the effect of such non-compliance on the constitution of an Annual General Meeting (AGM) and the validity of resolutions passed during the AGM. The court needed to determine if the failure to comply with notice requirements rendered the AGM a nullity and whether this affected the position of unit holders and third parties.

The Court of Appeal examined the statutory provisions and the circumstances surrounding the AGM, including the notice requirements. It assessed whether the non-compliance with section 80D rendered the AGM invalid and, consequently, any resolutions passed during the meeting. The court concluded that section 80D contained mandatory provisions, and non-compliance with these provisions did not necessarily render the AGM a nullity. The Court of Appeal also noted that the Magistrate did not make rulings on certain matters, and therefore, the appeal did not extend to those conclusions expressed in obiter. Regarding costs, the court found that the Magistrate had departed from the general rule that costs follow the event. The Magistrate's decision to interfere with the discretion of the court below and consider irrelevant factors, such as an offer of compromise and indemnity costs, warranted the Court of Appeal's intervention.

In its final orders, the Court of Appeal allowed the appeal, setting aside the Magistrate's decision regarding the recovery of unpaid levies and legal costs. It directed the case to be remitted to the County Court for further proceedings consistent with the Court of Appeal's reasoning. The Court of Appeal also addressed the issue of costs, finding that the Magistrate's approach was flawed and that the general rule of costs following the event should be adhered to, barring exceptional circumstances not present in this case. The court emphasised that the Magistrate's consideration of irrelevant factors and the offer of compromise were improper and influenced the outcome unfairly.

Orders