Rao Nallamouthou v The Owners-Strata Plan No 39988

[2024] NSWCATCD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rao Nallamouthou v The Owners-Strata Plan No 39988 [2024] NSWCATCD 73

Hearing dates:

16 July 2024

Date of orders:

21 November 2024

Decision date:

21 November 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Deputy President

Decision:

(1)     The application is dismissed.

(2)      Any costs application is to be made by way of Miscellaneous Orders application filed with the Tribunal and served on the applicant by person or by post and additionally by email, by 28 days from the date of this decision. Such application must include all documents and costs submissions relied upon. If such an application is made, the Tribunal will make further procedural directions to deal with the costs application.

Catchwords:

LAND LAW – strata title – access to records of owners corporation – disqualification of strata committee members – parking on common property – complaints about expenditure of owners corporation – whether applicant lot owner has cause of action – whether lot owner has satisfied Tribunal that orders sought should be made

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

Gill v The Owners-Strata Plan No 17913 [2024] NSWCATAP 37

Hill v The Owners-Strata Plan No 16519 [2022] NSWCATAP 234

Lo v Aree [2024] NSWCATAP 159

The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130

The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273

Walker v The Owners-Strata Plan No 1992 [2020] NSWCATAP 192

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ratajeshwara Rao Nallamouthu (Applicant)
The Owners-Strata Plan No 39988 (First Respondent)
Zeljko Milic (Second Respondent)
Kirshan Kumar Khanna (Third Respondent)
Shashi Bhat (Fourth Respondent)
Marina Fugazza (Fifth Respondent)

Representation:

Applicant (self-represented)
Second, Third, Fourth and Fifth Respondents (self-represented)

Solicitors:
Pobi Lawyers (First Respondent)

File Number(s):

2023/00382519

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by a lot owner in a strata scheme located in south western Sydney for orders against the owners corporation under various provisions of the Strata Schemes Management Act 2015 (NSW) (SSM Act).

2. The proceedings were filed on 31 July 2023. They were listed for a procedural directions hearing on 7 September 2023. As part of the dispute involved production of owners corporation records, and a new strata manager had been recently appointed by the owners corporation, the proceedings were adjourned for further directions.

3. At the directions hearing on 7 September 2023, a solicitor, Mr Pobi, appeared for the owners corporation. The owners corporation was only granted leave to be legally represented in the proceedings at that directions hearing. However, it was made clear that the owners corporation could make a separate application to be legally represented in the proceedings.

4. On 19 October 2024, matter was again listed for a directions hearing. Relevantly, the Tribunal made procedural directions for the parties to file and serve documentary evidence; granted leave to the applicant to amend the application to seek an order that strata committee members be disqualified from office under s 238 of the SSM Act; join parties to the proceedings; and granted leave for the respondent to be legally represented at the directions hearing. Again, the Tribunal made clear that if the respondents sought to sought leave to be legally represented in the proceedings generally they would need to seek a further order of the Tribunal. The Tribunal noted the issues in dispute between the parties, and that the Tribunal had made extensive efforts to identify what were the relevant issues in dispute.

5. On 10 January 2024, the Tribunal made an order granting the parties leave to be legally represented.

6. The matter was listed for hearing at the Tribunal on 16 July 2024. At the hearing, the applicant appeared. Mr Pobi, Solicitor, appeared for the owners corporation. The strata committee members who the applicant sought to remove from office under s 238 of the SSM Act also appeared.

7. The strata scheme the subject of this dispute is a large strata scheme comprising of approximately 129 lots.

8. At the hearing on 16 July 2024, all parties confirmed that they were ready to proceed to hearing and were not seeking an adjournment of the hearing for any reason. There was a dispute about whether or not the applicant had provided documents in support of his case to the Solicitor for the owners corporation, but those documents were produced at the hearing and the Solicitor was given the opportunity to view the documents.

9. In any event, neither party made an adjournment application, despite the Tribunal clearly informing all parties of the right to seek an adjournment if there was any appropriate reason to do so.

10. At the outset of the hearing, the applicant was asked to confirm what orders he was seeking. The orders sought by the applicant are referred to in the bundles of documents filed with the Tribunal on 31 August 2023 and 13 November 2023. The applicant stated that the hearing that all of the documents he was seeking to rely upon were contained in his bundle of documents filed on 13 November 2023, which comprise an index with 331 pages. The applicant stated that the bundle of documents filed on 13 November 2023 contained, in a single bundle, the documents he had previously filed (and served); and any additional documents he sought to rely upon at the hearing.

The Claim

11. The orders sought by the applicant where as follows: –

1. An order under s 188 of the SSM Act that records of owners corporation be produced to the applicant.

2. A “refund” of certain expenses which the applicant asserts were wrongfully charged pursuant to fire safety repairs. The applicant relied on s 232 of the SSM Act.

3. An order under s 232 of the SSM Act “in relation to variations/discrepancies of December 2018 – hailstorm related repairs of common property”.

4. An order under s238 of the SSM act that certain strata committee members be removed from office.

5. An order under s 232 of the SSM Act that the owners corporation take measures to prevent owners or occupants of the strata building parking on common property.

Documents of the Parties

12. As discussed previously, the applicant relied upon a bundle of 331 pages of documents filed with the Tribunal on 13 November 2023.

13. The owners corporation relied upon an affidavit of Ms Freels (strata manager) dated 13 December 2023, and the documents attached to that affidavit. In total, Ms Freels affidavit comprised 20 pages. The owners corporation also relied upon an outline of written submissions dated 11 December 2023 setting out why it opposed the orders sought.

14. The other parties did not file and serve any documentary evidence.

15. Pursuant to the Tribunal’s powers under s 38(2) and (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the documentary evidence of the parties was admitted, subject to weight and relevance. The owners corporation’s outline of written submissions, although not comprising evidence of factual matters, was considered as purely a legal argument.

Conduct of the Hearing

16. The applicant took an affirmation, and gave oral evidence. He was briefly cross-examined by the Solicitor for the owners corporation.

17. Ms Freels took an affirmation, and was cross-examined by the applicant in respect of the affidavit evidence in chief she had provided.

18. The parties then made oral submissions, and the decision was reserved.

Consideration

Issue 1- Parking on Common Property

19. The applicant gave evidence that, in his observation, some lot owners and occupiers had been parking there are “business-related vehicles” on common property.

20. The applicant provided limited photographic evidence in taken in 2023 to support his assertions that vehicles were being parked on common property.

21. The applicant’s documents also contained email correspondence in 2023 where the applicant had complained to the strata manager about this issue.

22. The applicant had not brought proceedings against specific lot owners or occupiers seeking an order under ss 232 or 241 of the SSM Act that the Tribunal ordered them to comply with the by-laws. Rather, the applicant was seeking an order from the Tribunal that the Tribunal direct the owners corporation to take action against such lot owners or occupiers.

23. The applicant also put forward a motion at the 2023 Annual General Meeting (AGM) of the owners corporation that lot owners and occupiers refrained from parking on common property, and that the owners corporation take action against persons who breach the by-laws regarding parking on common property.

24. It is not clear from the evidence of the parties whether or not the Motion proposed by the applicant regarding parking on common property at the 2023 Annual General Meeting was passed and became a resolution.

25. In any event, whether or not the Motion was, or was not, passed, it does not affect the outcome of the application for orders from the Tribunal.

26. An owners corporation has the power to seek enforcement of by-laws in a number of ways. The owners corporation can issue a Notice of Breach of the by-law under s 146 of the SSM Act; and if that notice has not been complied with, take proceedings to seek a penalty in accordance with s 147 of the SSM Act. An owners corporation (or a lot owner, or occupant) can also take proceedings in the Tribunal against a specific owner or occupier to seek an order of the Tribunal under s 241 to take measures to comply with a by-law. An example of such an application (in the context of a by-law regarding noise transmission) occurred in Lo v Aree [2024] NSWCATAP 159 (Aree).

27. While the Tribunal may have power under ss 232 and 241 to make an order directing the owners corporation to take compliance measures, such as the issue of a Notice to Comply with the By-laws, any such power is discretionary. It is not appropriate for the Tribunal to make orders that are vague, uncertain, or disproportionate to the particular complaint or dispute about the operation of the owners corporation within the parameters circumscribed by s 232 of the SSM Act (Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 (Coscuez) at [126]-[134]; Aree at [78]). The Tribunal’s powers are not unlimited and the Tribunal does not have the power to award the remedy of a declaration under s 232 (Coscuez at [42]).

28. The evidence of the applicant is insufficient to satisfy the Tribunal that is it is appropriate to order the owners corporation to take measures to enforce the common property parking by-law. The subjective complaints and beliefs of the applicant that parking on common property is a serious ongoing issue is not sufficient to justify the order sought. The Tribunal is not satisfied that the applicant’s evidence establishes that the owners corporation (or the strata manager) is ignoring, or failing to deal with a serious ongoing issue regarding parking on common property. The photographic evidence provided by the applicant with specific examples of parking on common property is limited and unpersuasive.

Issue 2-Removal of Strata Committee Members

29. Under s 238 of the SSM Act, the Tribunal has the power to order the removal of a person from the strata committee; an order prohibiting a strata committee from determining a specific matter; and an order removing a strata committee member from holding a specific office on the strata committee. Section 238 (2) sets out grounds upon which the Tribunal can make such an order, but the grounds are not limited to what is set out in subsection (2). Section 238(2) states that the Tribunal may remove the person if it is satisfied the person has (a) failed to comply with the Act, or the Regulations, or the by-laws of the strata scheme, or (b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

30. Making an order disqualifying a person from the strata committee is a serious order. Accordingly, the Tribunal needs to be satisfied that the conduct of the particular strata committee member is of such a serious nature that the order is justified in all the relevant circumstances. Examples of such conduct include serious unethical behaviour; serious failure to comply with the obligations of the strata committee member under s 37 of the SSM Act; or other serious misconduct as a strata committee member.

31. Subjective complaints or disagreements about the decisions made by strata committee members is not sufficient to justify an order under s 238 (Gill v The Owners-Strata Plan No 17913 [2024] NSWCATAP 37 at [78]-[79]). The onus is upon the applicant to establish the factual matters sufficient to make an order under s 238 of the SSM Act.

32. The issues raised by the applicant in these proceedings and his general complaints about the conduct of strata committee members is insufficient to persuade the Tribunal that an order under s 238 of the SSM Act should be made. Assessed objectively, they go no higher than his subjective views that the owners corporation could be managed differently and more efficiently. No misconduct, non-compliance with legal obligations; or serious lack of diligence by strata committee members of a type sufficient to justify an order under s 238 of the SSM Act is established.

Issue 3-Section 232 Order in Respect of AFS Repairs and Charges

33. The applicant asserts that in 2020, the owners corporation organised an annual fire safety inspection and advise the contractor to perform rectification works to be done on the spot if required. According to the applicant, such works were done, and lot owners were charged expenses that were not reasonable or justified for the repairs. The applicant pointed to a charge of $85 for the cost of adjusting a door, which he asserted was excessive.

34. The applicants documentary evidence at pages 226 – 249 refer to his complaints about the repairs and the charges. Those documents indicate that the owners corporation, facilitated by the strata manager, organised the annual fire safety inspection of the building by Secure Fire Safety Protection Holdings Proprietary Limited.

35. Certain repairs were performed, as set out in a tax invoice of Secure Fire Protection Holdings Proprietary Limited to the owners corporation dated 11 November 2020.

36. The position of the owners corporation was that it had performed necessary repairs to common property pursuant to its obligations under s 106(1) of the SSM Act, so that the building satisfied local Council fire safety compliance requirements. Failure to do so would have exposed the owners corporation to potential legal action and fines from the local Council and also the risk of injury or damage if a fire occurred. It denied that the charges were unreasonable or excessive.

37. At the hearing, the applicant was unable to identify with any precision the amount of money he asserted lot owners had been “overcharged” for the works; or how the Tribunal could make a general order for reimbursement; particularly in circumstances where the events occurred in 2020.

38. It is unnecessary to comment upon any potential limitation issues in the applicant asserting this cause of action (if a cause of action could be identified), approximately three years after the works were performed in the owners corporation paid for the works. Limitation issues for this type of complaint and the applicable legal principles are discussed in Coscuez at [108]-[110].

39. The Tribunal is not satisfied that the applicant has established any breach by the owners corporation of any of its legal obligations under the SSM Act in respect of the performance of the works, or the manner in which the works were paid for. The works performed were necessary works so that the owners corporation could comply with its legal requirements to obtain an annual fire safety certificate for the building, and are consistent with the owners corporation exercising its powers so that it complies with its obligation to keep and maintain common property in a reasonable state of repair under s 106 of the SSM Act (The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 at [56]-[59]).

Issue 4-Section 232 Orders in Relation to Alleged Discrepancies in December 2018 Hailstorm Repairs to Common Property

40. The applicant asserts that there was an insurance claim made by the owners corporation in respect of substantial repairs to the strata building arising from a hail storm; and subsequent works to the swimming pool roof in March 2019.

41. The applicant further asserts that the owners corporation did not appropriately expend insurance funds arising from the insurance claim due to the hailstorm in 2019, and that the insurer should have paid for the whole amount of the works.

42. The applicant’s documents at pages 182– 225 (in particular) deal with the issue of the repairs; the cost of repairs; and the insurance claim.

43. The evidence of Ms Freels, and the submission of the owners corporation, was that the owners corporation acted in accordance with the provisions of the SSM Act in respect of the insurance claim and the manner in which the repairs were conducted. The submission of the owners corporation was that it acted in accordance with the execution of its duty to keep and maintain common property in a reasonable state of repair under s 106 of the SSM act.

44. The Tribunal is not satisfied that any breach of the SSM Act has been established. The evidence and arguments of the applicant as to the purported breach by the owners corporation are vague, and underpinned by his subjective disagreement with the insurer paying for certain repairs, and other repairs being paid for by the owners corporation. He also believes the cost was excessive. However, his subjective belief does not establish any breach by the owners corporation of any obligation under the SSM Act; nor that the Tribunal should make any type of remedial order under ss 232 or 241.

Issue 5-Order For Provision of Documents under Section 188 of the SSM Act

45. The applicant asserts that he made a request for inspection of documents to the strata manager in March 2023. He was granted access to an electronic portal by the (then) strata manager in April 2023.

46. The applicant’s documents (in particular, from pages 1 – 225) relate to various inspections sought by the applicant in the period from 2021 to 2023. There had been an order by, by consent, of the Tribunal on 28 September 2021 that the owners corporation provide the applicant with an opportunity to inspect documents and records that the strata manager had in its possession, on the basis that the applicant pay the applicable inspection fee. It was noted by the Tribunal that the owners corporation did not have to provide access to documents that it did not have in its possession.

47. The dispute regarding inspection continued on into 2023. Relevant to this application, the applicant was given an opportunity to inspect the documents of the owners corporation electronically, and took that opportunity. The applicant complains that he was given inadequate access, and the documents to which he was able to access lacked a number of relevant financial records of the owners corporation.

48. The evidence of Ms Freels was that she had originally been the strata manager the owners corporation between January 2020 mid-October 2021; and the owners corporation had changed strata managers three times since 2016. In the period from March 2019 to 23 August 2023, it was managed by City Home Strata Management Proprietary Limited (now trading as Neighbourly Strata); and from 23 August 2023 to date by Australian Property Managers (Accounting) Proprietary Limited.

45. Ms Freels states that since recommencing as strata manager in August 2023 she has inherited a large number of electronic files (16,986 electronic files) from the former strata manager, and that organising these documents has been challenging. She states she has made numerous attempts to contact the former strata manager to ensure that all documents have been produced. According to Ms Freels, an extensive inspection by the applicant took place in December 2020. Ms Freels states she cannot comment on the records made available for inspection after that, but notes that the applicant had in his documents a list of documents provided by the former strata manager.

46. Ms Freels asserts that: –

1. The applicant has misunderstood a number of documents which have been provided in the past, and asserted that he has not been provided documents when his evidence indicates that documents have been provided.

2. Bank records of the owners corporation and records relating to levies have been provided to the applicant in the past.

3. A number of documents which the applicant complaints have not been provided are documents which do not, to the best knowledge of the strata manager, exist or otherwise, the strata manager does not have access to those records because they have not been produced by the former strata manager.

51. The relevant statutory provisions in the SSM act for production of documents are ss 182; 183 and 188 of the SSM Act.

52. Those provisions relevantly provide: –

182 Requests for inspection of records of owners corporation

(1) Persons who may inspect An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.

(2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations.

(3) Items to be made available for inspection The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent—

(a) the strata roll,

(b) any other records or documents required to be kept under this Part,

(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owner or the lessor of a leasehold strata scheme,

(d) (Repealed)

(e) any applicable 10-year capital works fund plan,

(f) the last financial statements prepared,

(g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,

(h) if a strata managing agent has been appointed, a copy of the instrument of appointment,

(i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015, a copy of the plan,

(j) any other record or document in the custody or under the control of the owners corporation,

(k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations,

(l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement,

(m) particulars of any service agreement entered into by the owners corporation,

(n) particulars of any agreement entered into with a local council for a strata parking area,

(o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents.

Maximum penalty—5 penalty units.

(4) Meeting inspections For the purpose of complying with requirements for the giving of notice of a meeting of the owners corporation, the original owner (whether or not having ceased to be an owner) or an agent authorised in writing by the original owner is entitled to inspect the strata roll without payment on making a written application.

(5) Voting in secret ballots must not be disclosed Despite any other provision of this section, the owners corporation must not make available for inspection any record that would disclose how an owner voted in a secret ballot unless the owners corporation is directed to do so by the Tribunal or a court.

183 Inspection of owners corporation documents

(1) An inspection under this Division is to take place at the time and place, or by the means, agreed on and, failing agreement, at the parcel at a time and on a date, or by the means, fixed by the owners corporation under this section.

(2) If an applicant and the owners corporation fail to reach an agreement within 3 days after the owners corporation receives the application, the owners corporation must immediately give the applicant a written notice fixing a specified time (between 9 am and 8 pm) on a specified date (not later than 10 days after the owners corporation receives the application), or a specified means, for the inspection to take place.

(3) The means for inspecting documents may be in person or through electronic access to the documents or any other means agreed on or fixed under this section.

(4) A person entitled to inspect a document may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.

188 Order to supply information or documents

(1) The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply to the applicant information that the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully withheld from the applicant and to which the applicant is entitled under this Act.

(2) The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply or make available to the applicant a record or document if—

(a) the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully failed to make the record or document available for inspection by the applicant or the applicant’s agent, and

(b) the applicant is entitled under this Act to inspect the record or document.

(3) The order may specify the manner in which information is to be supplied or made available.

53. In Walker v The Owners-Strata Plan No 1992 [2020] NSWCATAP 192 at [42]-[46] and Hill v The Owners-Strata Plan No 16519 [2022] NSWCATAP 234 at [53]-[55], the Appeal Panel referred to the Tribunal not having a “general” discretion to refuse to make an access order under s 188 if (a) the applicant established a right to access of the information; and (b) there is no adequate reason to relieve the owners corporation with compliance with its mandatory obligations under s 182.

54. However, that principle needs to be put into context. The applicant still has to establish a right under the SSM Act to have access to the document or documents; and even if the applicant does so, there may be a satisfactory reason why the owners corporation cannot give access. An owners corporation cannot give access to documents that it does not have in its possession, nor is s 188 a mechanism to order an owners corporation to create certain documents, or provide documentary explanations for things that have occurred. The Tribunal also cannot make orders that are vague and indeterminate.

55. In this matter, the applicant’s evidence regarding the access he was given and the documents he has obtained does not clearly identify what documents the owners corporation has in its possession under s 182(3) that he has not been given access to. The evidence does not go beyond speculation that there may be other documents that he was not provide access to. Further, the evidence Ms Freels is that there may be missing records or documents due to the changes of strata manager, and that she has taken reasonable measures to locate those documents.

56. The Tribunal is not satisfied that the owners corporation has wrongfully failed to make records or documents of the owners corporation available for inspection to the applicant; or that documents have been wrongfully withheld under ss 188(1) or (2) of the SSM Act based upon the broad and speculative complaints of the applicant.

57. It is unnecessary to address the issue raised by the owners corporation that the applicant had failed to pay a fee for inspection under s 182(3) of the SSM Act, as no basis for an order under s 188 is established in any event.

Conclusion

58. The applicant has failed to establish that the Tribunal should make any of the orders sought and the application is accordingly dismissed.

The Issue of Costs

59. As the owners corporation is legally represented, there may be a costs application. However, the Tribunal notes that for any costs order to be made, the party seeking costs would need to establish both (a) special circumstances under s 60 (2) of the NCAT Act; and (b) those special circumstances are sufficient in all the circumstances for the Tribunal to exercise its discretion to depart from the usual principle in s 60(1) of the NCAT Act that each party bear its own costs (The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [5]-[15] (B & G Trading).

60. The Tribunal expresses no views about the issue of costs, other than to point out that the onus is on the party seeking costs to establish the matters set out in B & G Trading.

61. If a costs application is made, it is to be made by 28 days from the date of this decision, by way of a Miscellaneous Orders application to be filed and served, and include all costs submissions and documents. If such a costs application is made, the Tribunal will make further procedural directions to deal with the issue of costs. If no such application is made, there is no order as to costs.

ORDERS

1. The application is dismissed.

2. Any costs application is to be made by way of Miscellaneous Orders application filed with the Tribunal and served on the applicant by person or by post and additionally by email, by 28 days from the date of this decision. Such application must include all documents and costs submissions relied upon. If such an application is made, the Tribunal will make further procedural directions to deal with the costs application.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 August 2025