Read v The Owners Strata Plan No. 5362 - [2024] NSWCATCD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Read v The Owners – Strata Plan No. 5362 [2024] NSWCATCD 27
Hearing dates: 25 August 2023
Date of orders: 02 February 2024
Decision date: 02 February 2024
Jurisdiction: Consumer and Commercial Division
Before: D. Goldstein. Senior Member
Decision:
1   The application is dismissed.
2   In the event that a party wishes to bring a costs application, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
3   The costs respondent will have 14 days after the date it or they receives the application to lodge in the Tribunal and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
4   The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
5   Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the papers lodged in the Tribunal.

Catchwords:
STRATA TITLE – Appointment of strata managing agent - Removal of Strata Committee members

Legislation Cited:
Strata Schemes Management Act 2015

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Crespel v The Owners – Strata Plan No 66165 [2022] NSWCATCD 141
Foo v Frew [2023] NSWCATAP 303
Linney v The Owners – Strata Plan No. 11669 [2021] NSWCATCD 123
Lockrey v Rosewal [2022] NSWCATCD 27
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341
Velastegui v Chan [2021] NSWCATCD 98

Texts Cited:
Burdens and Standards in Civil Litigation [2003] Sydney Law Review 165 ,CR Williams

Category: Principal judgment
Parties: Malcom Reid and Leonie Palmer: applicants
The Owners – Strata Plan No. 53262: first respondent
Peter Bonello: second respondent
Catherine Munayer: third respondent
John Wynne: fourth respondent
David Withers: fifth respondent
Representation: Solicitors:
Mr I McKnight for the respondents

File Number(s): 2023/00401749 (Previously SC 23/16911)
Publication restriction: Nil

REASONS FOR DECISION

In these proceedings the applicants seek orders under s 237 of the Strata Schemes Management Act 2015 (‘SSMA’) for the appointment of a compulsory strata manager. Orders are also sought under s238 of the SSMA for the removal of the second, third, fourth and fifth respondents from the strata committee.
The approach to an application such has been made by the applicants was discussed by an appeal panel in Foo v Frew [2023] NSWCATAP 303 at [21] to [27]. It will be of assistance to set out what the appeal panel stated, which is as follows:

‘SSMA s 237 gives, by the word “may”, a discretion to the Tribunal which needs to be exercised on principled…

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.

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Details

Case: [2024] NSWCATCD 27
Decision Date: 02 February 2024

CaseChat Overview and Summary

In the matter of Read v The Owners Strata Plan No. 5362, the court addressed a dispute regarding the removal of members from a strata committee and the appointment of a strata managing agent within a strata title in Australia. The dispute was brought before the Tribunal, which was tasked with making decisions on the legal issues presented by the case.

The primary legal issue before the court was whether the removal of members from the strata committee and the appointment of a strata managing agent were carried out in accordance with the relevant strata legislation and the body corporate’s rules. This included assessing whether the decisions were made in good faith and whether the process followed was fair and transparent.

The court examined the evidence presented and found that the decisions were made in compliance with the applicable legislation and rules. The court further determined that the actions taken by the body corporate were reasonable and in the best interests of the strata scheme. As a result, the court dismissed the application brought by the plaintiff, finding that the decisions made by the body corporate were valid and lawful.

In light of the dismissal of the application, the court outlined the procedures for any potential costs applications that may arise from the proceedings. Any party wishing to bring a costs application must lodge and serve it within 14 days of the date of the orders, attaching or referring to the relevant documents. The responding party has a further 14 days to submit its or their response, also attaching or referring to the documents relied upon. The court emphasised that the determination of any costs application would be based on the written submissions and attached documents, unless the parties consented to a hearing.

Orders

Orders of the court

1 The application is dismissed.

2 In the event that a party wishes to bring a costs application, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

3 The costs respondent will have 14 days after the date it or they receives the application to lodge in the Tribunal and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

4 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

5 Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the papers lodged in the Tribunal.

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:	Read v The Owners – Strata Plan No. 5362 [2024] NSWCATCD 27
Hearing dates:	25 August 2023
Date of orders:	02 February 2024
Decision date:	02 February 2024
Jurisdiction:	Consumer and Commercial Division
Before:	D. Goldstein. Senior Member
Decision:	1 The application is dismissed. 2 In the event that a party wishes to bring a costs application, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 3 The costs respondent will have 14 days after the date it or they receives the application to lodge in the Tribunal and serve on/give to the costs applicant its or their submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 4 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 5 Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the papers lodged in the Tribunal.
Catchwords:	STRATA TITLE – Appointment of strata managing agent - Removal of Strata Committee members
Legislation Cited:	Strata Schemes Management Act 2015
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Crespel v The Owners – Strata Plan No 66165 [2022] NSWCATCD 141 Foo v Frew [2023] NSWCATAP 303 Linney v The Owners – Strata Plan No. 11669 [2021] NSWCATCD 123 Lockrey v Rosewal [2022] NSWCATCD 27 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341 Velastegui v Chan [2021] NSWCATCD 98
Texts Cited:	Burdens and Standards in Civil Litigation [2003] Sydney Law Review 165 ,CR Williams
Category:	Principal judgment
Parties:	Malcom Reid and Leonie Palmer: applicants The Owners – Strata Plan No. 53262: first respondent Peter Bonello: second respondent Catherine Munayer: third respondent John Wynne: fourth respondent David Withers: fifth respondent
Representation:	Solicitors: Mr I McKnight for the respondents
File Number(s):	2023/00401749 (Previously SC 23/16911)
Publication restriction:	Nil