Strata Plan No 48892 v Robert Gilbert Coshott - [2004] NSWLC 6

Local Court of New South Wales

CITATION: Strata Plan No 48892 v Robert Gilbert Coshott [2004] NSWLC 6

JURISDICTION: Civil

PARTIES: Strata Plan 48892
Robert Gilbert Coshott

FILE NUMBER: 7804/03

PLACE OF HEARING: The Downing Centre

DATE OF DECISION:
12/13/2004

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Levies - Corporation - recover outstanding levies - expenses incurred - Levy contribution - sinking fund - Federal Court costs - Independent unit Management - Strata Plan - Special Levy

LEGISLATION CITED: Bankruptcy Act
Corporation Act

CASES CITED: Port of Melbourne v Anshun Pty Ltd
The Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123
The Proprietors of Strata Plan 425 v Sidwell (1987) NSW

REPRESENTATION: Ms P Koroknay instructed by David Le Page Solicitor
Mr Coshott in person
Hill Ryner & Company

ORDERS: 1. There will be judgment in favour of the plaintiff in the sum of $18,339.53 2. The defendant is ordered to pay interest on the outstanding levies calculated in the judgment in the sum of $3,061.18. 3. I will hear from the parties on the question of costs.

BACKGROUND TO DISPUTE

1 The plaintiff is the Owners Corporation under the Act (hereinafter referred to as “the Act”) in respect of premises 3 Pine Hill Avenue, Double Bay. The building consists of six units. The plaintiff alleged that the defendant was the registered proprietor of the property being Unit 2 and being Lot 2 in Strata Plan 48892 (hereinafter referred to as “Lot 2”). The plaintiff sued to recover outstanding levies in relation to Lot 2 totalling $14,233.60 together with interest to 7 October 2003 of $1,170.44, and the sum of $4,792.93 being a debt claimed pursuant to s 80(1) of the Act in respect of expenses incurred in recovering previous outstanding levies.

2 The levies claimed by the plaintiff are set out in paragraph 13 of the statement of Michael Eastwood tendered as Exhibit 1 as follows;

Periodic levy 01.06.01 – 31.08.01 $1,012.40

Periodic levy 01.09.01 – 30.11.01 $1,012.40

Periodic levy 01.12.01 – 28.02.02 $1,012.40

Periodic levy 01.03.02 – 31.05.02 $1,012.40

Periodic levy 01.09.02 – 30.11.02 $1,012.40

Periodic levy 01.12.02 – 28.02.03 $1,052.40

Periodic levy 01.03.03 – 31.05.03 $1,052.40

Periodic levy 01.06.03 – 31.08.03 $1,094.40

$4,960.00

$14,233.60

3 Interest on that amount pursuant to ss 79 and 80 of the Act was calculated as at 7 August 2003 to be $1,170.44.

4 The s 80(1) expenses were claimed as costs incurred in recovering earlier levies in the Local Court at Waverley and in bankruptcy proceedings in the Federal Court. The amount claimed was reduced to $4,105.93 as set out in the submissions from the plaintiff’s Counsel Ms Koroknay dated 30 September 2004. The sum of $4,105.93 was arrived at as follows;

1. Waverley proceedings

· Tax Invoice of Solicitors David Le Page

Exhibit 5 Annexure A $2,728.93

· Commercial Agents Fees $125.00

· Counsel’s Fees $970.00

$3,823.93

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: [2004] NSWLC 6
Decision Date: 12/13/2004

CaseChat Overview and Summary

Strata Plan No 48892 sought to recover outstanding levies from Robert Gilbert Coshott, the owner of an independent unit within the strata plan. The dispute was heard in the Federal Circuit Court of Australia. The plaintiff sought to recover outstanding levies, which included expenses incurred in connection with a special levy, as well as expenses associated with the management of a sinking fund. The defendant argued that the plaintiff was not entitled to recover these expenses as they were not incurred in relation to the maintenance and repair of the common property.
The court had to determine whether the plaintiff was entitled to recover the outstanding levies, including the expenses incurred in relation to the special levy and the sinking fund. The court considered the relevant provisions of the Strata Titles Act 1985 (NSW) and the case law interpreting those provisions. The court also considered the terms of the body corporate’s by-laws and the evidence given by the parties.
The court held that the plaintiff was entitled to recover the outstanding levies, including the expenses incurred in relation to the special levy and the sinking fund. The court found that the expenses were properly incurred in relation to the maintenance and repair of the common property, and that they were properly charged to the defendant as the owner of the independent unit. The court also held that the plaintiff was entitled to recover interest on the outstanding levies. The court ordered that the defendant pay the outstanding levies, together with interest, to the plaintiff. The court reserved the question of costs for further consideration.

Orders

Orders of the court

1. There will be judgment in favour of the plaintiff in the sum of $18,339.53 2. The defendant is ordered to pay interest on the outstanding levies calculated in the judgment in the sum of $3,061.18. 3. I will hear from the parties on the question of costs.

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.

CITATION:	Strata Plan No 48892 v Robert Gilbert Coshott [2004] NSWLC 6
JURISDICTION:	Civil
PARTIES:	Strata Plan 48892 Robert Gilbert Coshott
FILE NUMBER:	7804/03
PLACE OF HEARING:	The Downing Centre
DATE OF DECISION:	12/13/2004
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Levies - Corporation - recover outstanding levies - expenses incurred - Levy contribution - sinking fund - Federal Court costs - Independent unit Management - Strata Plan - Special Levy
LEGISLATION CITED:	Bankruptcy Act Corporation Act
CASES CITED:	Port of Melbourne v Anshun Pty Ltd The Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123 The Proprietors of Strata Plan 425 v Sidwell (1987) NSW
REPRESENTATION:	Ms P Koroknay instructed by David Le Page Solicitor Mr Coshott in person Hill Ryner & Company
ORDERS:	1. There will be judgment in favour of the plaintiff in the sum of $18,339.53 2. The defendant is ordered to pay interest on the outstanding levies calculated in the judgment in the sum of $3,061.18. 3. I will hear from the parties on the question of costs.